Citation Nr: 1805554 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-29 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to June 2002. He is the recipient of the Bronze Star Medal and the Southwest Asia Service Medal with three Bronze service stars, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO continued and confirmed the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In October 2016, the Veteran presented sworn testimony during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board has broadened and re-characterized the appeal, as entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, as reflected on the title page pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Procedurally, in rating decision a May 2003 rating decision, the RO denied entitlement to service for an adjustment disorder with depressed mood. Thereafter, in April 2009, the RO denied entitlement to service connection for PTSD, entitlement to service connection for depression and declined to reopen the previously denied claim of entitlement to service connection adjustment disorder with depressed mood. In a March 2010 rating decision, the RO denied reopening the previously denied service connection claims for acquired psychiatric disorders. Most recently, in August 2011, the Veteran submitted a claim for of entitlement to service for an acquired psychiatric disorder. To this end, the evidence of record at the time of the prior May 2003, April 2009, and March 2010 RO denials the evidence included the Veteran's service treatment records and his DD Form 214. However, most recently associated with the claims file, in June 2012, was a Bronze Star Medal certificate which indicates that the Veteran was deployed in Southwest Asia in combat operations associated with operation Desert Storm. Furthermore, the certificate states that the Veteran was commended for his role in assisting the United Nations coalition in defeating the Iraqi forces and liberating the Republic of Kuwait from their armed aggression. This Bronze Star Medal certificate contains information relevant to the issue on appeal; in particular it relates to the question of whether the Veteran engaged in combat with the enemy, as discussed in more detail below. Pursuant to 38 C.F.R. § 3.156 (c) (2017), where relevant official service department records that existed and had not been associated with the claims file are received after a decision on a claim, VA must reconsider the claim, notwithstanding the prior finally adjudicated claims. As a result, the claim will be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's major depressive disorder is related to his combat military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a major depressive disorder are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2012). As the Board is granting the benefit sought in full for entitlement to service connection for an acquired psychiatric disorder, to include a major depressive, further discussion of the VCAA is unnecessary. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran claims that his psychiatric disorder is related to his military service. Specifically, he asserts that during his military service in Iraqi, he experienced and witnessed many traumatic events, such as witnessing others death and fear of enemy attacks, that caused depression in and since service. See Board hearing transcript dated October 2016. The Veteran contends that his military occupational specialty (MOS) was a supply specialist for military vehicles, which included delivering ammunition, mail, water, repair parts, and weapons on a daily basis in combat area such as Iraqi. He claims that due to the location of his deployment, he witnessed "sheer destruction" in the midst of combat. He indicates that in and since service he continues to have nightmares of the noises, dust, and the roar from the destruction he observed while in Iraqi. Id. The Veteran's DD Form 214 illustrates that he served in Saudi Arabia, Kuwait and Southwest Asia. His service records include a Bronze Star Medal certificate which indicates that he was deployed in Southwest Asia in combat operations associated with operation desert storm. Furthermore, the certificate states that the Veteran was commended for his role in assisting the United Nations coalition in defeating the Iraqi forces and liberating the Republic of Kuwait from their armed aggression. Additionally, his service records reveal that his military occupation specialty (MOS) was a supply specialist for 20 years and 9 months. Post service, in a May 2003 general medical examination report, the VA examiner noted that the Veteran was depressed and anxious. In a May 2003 VA mental disorder examination report, the examiner diagnosed an adjustment disorder with depressed mood due to the loss of the Veteran's spouse in September 2002. In a September 2008 statement and in the Veteran's September 2008 claim, the Veteran reported that he has been depressed since 2001. In an October 2009 statement, Dr. N.A.O. reported that the Veteran had a diagnosis of depression that and that he suffered traumatic in-service service events, to include witnessing the death of others and had contact with the enemy. In February 2010, the Veteran was afforded a VA examination. The examiner diagnosed depressive disorder, not otherwise specified (NOS), recurrent. The VA examiner opined that the Veteran's depression was not due to his back and left shoulder disabilities. Although the February 2010 VA examiner did not give an opinion on direct service connection, the examiner's rationale for his negative nexus opinion on a secondary service connection basis was that there was no evidence of psychiatric treatment during service. The examiner also indicated that the Veteran's mental condition is due to the death of his wife. In October 2012, the Veteran was afforded a VA examination. During the VA examination, the Veteran reported that he first sought private and VA psychiatric treatment in 2003. He stated that he sought psychiatric treatment for his depression sporadically since 2003 because he was unable to afford treatment on a regular basis. The VA examiner found that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV criteria; however, the examiner diagnosed a major depressive disorder. The VA examiner opined that the Veteran's PTSD was less likely than not due to his military service, because he does not met the diagnostic criteria for PTSD. The VA examiner further noted that the Veteran reported depression during service however he did not seek mental treatment during service. The examiner stated that the Veteran's wife passed away in June 2002, which "exacerbated" his major depressive disorder and he did not seek mental health treatment until 2006. For the reasons below, the Board finds that entitlement to service connection for an acquired psychiatric disorder, specifically, a major depressive disorder is warranted. First, the evidence of record demonstrates a current acquired psychiatric disorder diagnosis, namely a major depressive disorder. Thus, a current disability has been established. As to the in-service disease or injury element, the Board finds that the evidence, including the medals received by the Veteran are indicative of combat although the Veteran has not received a medal that is one of those listed in the VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated September 11, 2015) (listing Decorations that are evidence of combat participation). The Board notes that a finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). In this case, the evidence reflects that he was awarded the Bronze Star Medal for his deployment in Southwest Asia due to combat operations associated with operation Desert Storm and his role in assisting the United Nations coalition in defeating the Iraqi forces and liberating the Republic of Kuwait from their armed aggression. See Bronze Star Medal certificate dated April 1991. Thus, based on the Veteran's lay testimony and his service records, the Board finds that he engaged in combat with the enemy. The finding that the Veteran engaged in combat is significant because VA laws and regulations allow a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). See also 38 C.F.R. § 3.304 (d). In this case, the Veteran's depression due to combat has been accepted as satisfying the in-service disease or injury element. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record); Reeves, 682 F.3d 988, 999 (Fed. Cir. 2012). Based on the service records, the evidence submitted by the Veteran, and by applying 38 U.S.C.A. § 1154 (b), the Board concludes that the Veteran suffered depression during his military service as due to his combat operations. Therefore, the in-service disease or injury element has been met. Thus, the remaining issue is whether the current acquired psychiatric disability, specifically, a major depressive disorder, is related to his in-service depression. To this end, given the application of 38 U.S.C.A. § 1154 (b) as explained in Reeves, the Veteran's lay testimony along with the other evidence above provides a sufficient basis to conclude that his current major depressive disorder is related to his in-service depression. The Board finds that the VA negative opinions as to whether the Veteran's acquired psychiatric disorder is related to his military service are of no probative value, as the VA examiners did not consider the Veteran's combat military service or his complaints of psychiatric symptoms, such as depression in and since service. The VA examiners negative rationales were primarily based on the infrequency that the Veteran sought mental health treatment following service and that he sought mental health treatment for the passing his wife. The VA examiners findings are inaccurate, as the Veteran has consistently reported, and the evidence shows, that he sought mental health treatment in 2003, which is one year after his separation from service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Furthermore, he has also consistently reported that his depression was due his combat military service and was exacerbated by his wife's passing. See, e.g, Board hearing transcript dated October 2016. In sum, the evidence shows that during service, the Veteran engaged in combat with enemy, in which he reports that he has experienced acquired psychiatric symptoms, such as depression, in and since, due to his combat experiences. In one year following the Veteran's discharge from his military service, he submitted a claim for an acquired psychiatric disorder and was diagnosed with an adjustment disorder with depressed mood. See Veteran's claim dated May 2003 and VA examination report dated May 2003. Since he submitted his initial service connection claim, he has continually reported his psychiatric symptoms, to include depression, which is documented in a private treatment record an October 2009 and VA examinations throughout the pendency of his appeal. See, e.g., statement from Veteran's private treatment provider dated in October 2009. Importantly, the veteran is competent to testify regarding continuous symptoms since service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). The evidence is thus at least evenly balanced as to whether the Veteran's current major depressive disorder is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a major depressive disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To the extent that other psychiatric disorders have been diagnosed, there is no indication that there are distinct psychiatric symptoms attributable to such disorders, and all psychiatric symptoms will therefore be attributed to the now service connected major depressive disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Consequently, consideration of whether other psychiatric disorders are related to service is unnecessary. ORDER Entitlement to service connection for major depressive disorder is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs