Citation Nr: 1801427 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-20 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for depression. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1976 to September 1976 and August 1977 to March 1982. The Veteran's service from August 29, 1980 to March 22, 1982 was found to be dishonorable for VA purposes. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A videoconference hearing was held before the undersigned in September 2013. A transcript of the hearing is associated with the Veteran's claims file. The Board remanded the claim in October 2014, May 2015, and January 2017 for further development. FINDING OF FACT The preponderance of the evidence supports the Veteran's depression was not incurred in or caused by his period of honorable service. CONCLUSION OF LAW The criteria for entitlement to service connection for depression have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). The Board finds VA has satisfied the duty to notify and assist. A September 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. VA obtained the records reported by the Veteran, to the extent possible. VA provided an examination in February 2015. In January 2017, the Board remanded the claim for the RO to request clinical records from the Berlin Certified Drug and Alcohol Counselor (CDAAC) because clinical records may be kept separate from service treatment records (STRs). In February 2017, the RO requested these records from the National Personnel Records Center (NPRC). On April 6, 2017, a negative response was received indicating all available clinical records from Berlin CDAAC had been sent. In October 2017, the RO sent a letter to the Veteran and his representative indicating they had been unable to locate any additional clinical records from the Berlin CDAAC and all efforts to obtain the records had been exhausted. The RO gave the Veteran and his representative 10 days to respond. On December 8, 2017, the Veteran's representative submitted a brief stating there was no additional argument to present and the record could be returned for the Board's consideration. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including psychosis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The record does not support, nor has the Veteran contended, evidence of psychosis. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends his depression is related to his periods of honorable service. The Board recognizes the Veteran has a diagnosis of depression. See VA treatment notes and February 2015 VA examination. The issue before the Board is whether the evidence supports the Veteran's depression was incurred in or etiologically related to his honorable service from May 1976 to September 1976 or August 1977 to August 1980. Service treatment records (STRs) for the periods of May 1976 to September 1976 and August 1977 to August 1980 are silent for complaint, diagnosis, or treatment of depression. STRs show treatment for improper use of opiates in 1979. The Veteran's February 1980 examination noted no mental illness. Post-service, in August 2002, the Veteran tried to locate his claims file and was informed his claims file was missing. In January 2009, the Veteran's STRs were located. Thereafter, in November 2009, the Veteran sought treatment for his mood being down. He was diagnosed with adjustment disorder, cocaine abuse, alcohol abuse, and substance induced mood disorder. The examiner noted the Veteran's depression symptoms appeared secondary to substance abuse. In subsequent VA treatment visits, the Veteran was diagnosed with depressive disorder, dysthymic disorder, alcohol dependence in remission, and cannabis abuse in remission. At a September 2013 hearing, the Veteran reported his depression occurred during his second enlistment and continued once he separated from the military in 1982. In-service, he reported he was married to an Italian woman and felt his company did not approve of interracial marriages. He felt this caused him to be transferred, which ruined his marriage and career. Post-service, he reported he became depressed because VA was unable to locate his service records, so he could not go see a doctor or psychiatrist. He reported his post-service depression mainly came from not being able to get treatment. A February 2015 VA examination diagnosed depression, alcohol use in remission, and cannabis abuse in remission. The Veteran reported he had sadness in 1978 after his aunt was killed by her son and then killed himself in jail. Also, the Veteran reported he fell in 1979, which caused back pain, which caused him to use heroin and alcohol for pain. The Veteran reported his sadness is off and on, worse when he is stressed. Examples of situations that create stress were finding out he is not his daughter's biological father, thinking about his mother's death, back pain, joblessness, and homelessness. He reported less depression symptoms when he is sober. The examiner opined the Veteran's depression was less likely than not incurred in or caused by service. The Board finds there is a lack of evidence showing the Veteran's depression was incurred in service or is etiologically related to service. While the Veteran is competent to report the symptoms of depression, the Veteran is not competent to diagnose or provide an etiology for these symptoms, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board gives great probative weight to the September 2013 VA examiner opinion that the Veteran's depression is less likely than not incurred in or caused by service. The examiner reviewed the record and conducted an in-person examination. The examiner discussed all the relevant evidence of record, including the Veteran's lay statements regarding his sadness in service. There are no conflicting medical opinions of record opining the Veteran's depression is etiologically related to service. The Board is sympathetic to the stressors and symptoms the Veteran has experienced, but the Board is required to evaluate whether competent and credible evidence supports his depression was incurred in or etiologically related to service. The Board cannot make its own medical conclusion, but must rely on medical opinions that are supported by the record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). For these reasons, the Veteran's claim for service connection for depression is denied. ORDER Service connection for depression is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs