Citation Nr: 1802209 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-30 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for depression as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and friend ATTORNEY FOR THE BOARD N. Keogh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing is of record. The undersigned left the record open for 60 days to allow the Veteran the opportunity to submit a positive nexus statement. The 60 days have expired and no additional evidence has been received from the Veteran. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT There is at least an approximate balance of positive and negative evidence that the Veteran's depressive disorder was caused by his service-connected impaired sphincter control, tinnitus, bilateral hearing loss, and hemorrhoids. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for depressive disorder, as secondary to the service-connected impaired sphincter control, tinnitus, bilateral hearing loss, and hemorrhoids, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for Depressive Disorder A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that he has depression secondary to his service-connected connected impaired sphincter control, tinnitus, bilateral hearing loss, and hemorrhoids. Specifically, the Veteran testified he feels depressed due an inability to go places due to incontinence. See October 2017 video conference hearing transcript. This is consistent with the Veteran's written submissions regarding depression caused by functional limitations resulting from his service-connected disabilities. See August 2014 Form 9. For the reasons discussed below, the Board finds that service connection for depressive disorder, as secondary to the service-connected impaired sphincter control, tinnitus, bilateral hearing loss, and hemorrhoids, is warranted. See 38 C.F.R. § 3.310(a). The Veteran is receiving treatment for depression through VA. The treatment records contain reports of depressed mood, anxiety, insomnia, restlessness, anhedonia, vague thoughts of death without suicidal ideations. See July 2011 treatment records. In an August 2012 follow-up for depression, the Veteran gave a history of depression related to his physical condition such as incontinence, which causes him to wake up during the night and feel tired the next day. See October 2012 treatment records. VA afforded the Veteran a general psychiatry examination in March 2013. The examiner diagnosed the Veteran with Major Depressive Disorder conforming to the DSM IV criteria. See March 2013 VA examination. The March 2013 VA examiner concluded that it was less likely than not that the Veteran's depression was proximately due to or the result of his service-connected conditions. The examiner opined that the Veteran was depressed about his overall health, and had suffered depression periodically since the conclusion of military service. In a June 2013 buddy statement, D.C. reported that the Veteran exhibits symptoms of depression, and does not travel to public areas due to embarrassment caused by his service-connected disabilities. D.C. noted the Veteran often stays home and sits in the dark. The Board has afforded the March 2013 opinion some probative weight. However, it is inconsistent with treatment records that indicate the Veteran was depressed about physical conditions, including his service-connected incontinence. See October 2012 treatment records with staff psychiatrist S.K. Thus, there is a current diagnosis of depressive disorder which the medical evidence of record has related to the complications and functional impairment relating to the Veteran's impaired sphincter control. Accordingly, at the very least the evidence for and against the claim is in relative equipoise, so service connection for depressive disorder is granted as secondary to the Veteran's service-connected disabilities. For the reasons explained above, having resolved doubt in favor of the Veteran, service connection for depressive disorder is warranted. ORDER Entitlement to service connection for depressive disorder, as secondary to the service-connected disabilities, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs