Citation Nr: 1806207	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-34 932	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for depression, claimed as secondary to service-connected disabilities.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from January 1983 to February 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO).  This case was previously before the Board in January 2014, January 2015, and May 2016 when, in part, the matter on appeal was remanded for additional development.  

Finally, the Board notes that in a May 2016 decision, the Board denied entitlement to service connection for a cervical spine disability and for a lung disability.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In April 2017, the Court vacated the May 2016 Board decision to the extent it denied entitlement to service connection for a cervical spine disability and for a lung disability, and remanded the matters to the Board for further action consistent with a Joint Motion for Partial Remand (Joint Motion) by the parties.  In July 2017, the Board remanded the matters for additional development.  Inasmuch as the development requested in the remand has not been completed, these matters are not ripe for consideration by the Board, and are not addressed in this opinion.  


FINDING OF FACT

Depression is secondary to service-connected benign carcinoid tumor of lung, status post right pneumonectomy.  


CONCLUSION OF LAW

Depression is secondary to service-connected benign carcinoid tumor of lung, status post right pneumonectomy. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).  
REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he is entitled to service connection for depression as secondary to his service-connected disabilities.  Specifically, he claims his depression is secondary to his service-connected benign carcinoid tumor of lung, status post right pneumonectomy.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Service connection may be established for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995).  
The Board finds that the Veteran is entitled to service connection for depression.  In this respect, the Board notes that the Veteran is service-connected for benign carcinoid tumor of lung, status post right pneumonectomy, obstructive sleep apnea, and trachea and heart positional shift.  In addition, the Veteran has established total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  See June 2017 rating decision.  The evidence includes a July 2010 mental disorders examination in which the Veteran denied any combat exposure or any traumatic experiences during his military service.  The examiner diagnosed depressive disorder, not otherwise specified.  It was opined that the most proximal causes of the Veteran's current depressive symptoms are unemployment, resulting financial strain, and multiple medical problems.  Although the Veteran's reported medical complications from the pneumonectomy may exacerbate symptoms of depression, these complications are not considered the most proximal cause for depression.  Therefore, it was less likely than not the Veteran's current symptoms of depression were a direct result of his service-connected right lung pneumonectomy.  

Based on the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's depression is secondary to his service-connected disabilities and his service-connected benign carcinoid tumor of lung, status post right pneumonectomy.  38 C.F.R. § 3.310.  In this regard, the Board notes that the following the July 2010 VA mental disorders examination, the Veteran was granted service connection for obstructive sleep apnea and trachea and heart positional shift, and granted TDIU based on his service-connected disabilities.  Inasmuch as the July 2010 VA mental disorder examination found that the Veteran's depression was due to his unemployment, which has been found to be due to his service-connected disabilities, the Veteran's depression is therefore secondary to his service-connected disabilities.  And inasmuch as the July 2010 VA mental disorders examiner opined that the most proximal cause for the Veteran's depression was not his service-connected benign carcinoid tumor of lung, status post right pneumonectomy, the examiner nonetheless indirectly opined that a proximal cause for the Veteran's depression was his service-connected benign carcinoid tumor of lung, status post right pneumonectomy, and the Board finds that service connection is warranted for his depression.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  


ORDER

Service connection for depression is granted.  





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs