Citation Nr: 18139877 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 17-41 851 DATE: October 1, 2018 ORDER Service connection for depression is denied.   FINDING OF FACT The Veteran does not have a current psychiatric disorder, to include one manifested by depression. CONCLUSION OF LAW The criteria to establish service connection for depression have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1955 to April 1957. The case is on appeal from an August 2016 rating decision. In March 2018, the Veteran appeared at a Travel Board hearing. In March 2018, the Board remanded the claim for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection for Depression Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pertinent to a service connection claim, such a determination requires a finding of a current disability as one of the elements. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran contends that he currently has depression related to his in-service experience of visiting the Dachau concentration camp in Germany. He testified during the March 2018 hearing that after visiting this area, he was upset and sought treatment at the infirmary. However, the Veteran’s service treatment records are silent for complaints or treatment of a psychiatric disorder. The Veteran’s spouse submitted a November 2016 statement in which she indicated she witnessed many occasions where the Veteran got depressed due to the memory or mention of the concentration camp in Dachau. She stated the Veteran told her he was sent on a detail from Munich, Germany to Dachau, at which time he visited the gas chambers located in the concentration camp. She noted he was affected by this experience and it “never left his mind.” She indicated the Veteran brought up the experience often and then would get depressed and need to be left alone. The Board notes the Veteran’s VA treatment records show current complaints of depression. A May 2016 VA treatment record noted the Veteran had recurrent thoughts of the Dachau concentration camp which he visited during service. The Veteran reported to the examiner that when he visited the camp, he went into a gas chamber, saw pipes on the wall, saw two crematoriums, as well as a “blood ditch” used for shooting people. He indicated this experience has constantly bothered him since and the examiner diagnosed him with depression. A June 2016 VA treatment record indicated a positive depression screen; however, a later June 2016 VA record noted the Veteran feels depressed at times, but not persistently. Further, January 2017 and January 2018 VA treatment records indicated negative depression screens. VA record do not contain a DSM diagnosis of a psychiatric disorder. The claim was remanded by the Board in March 2018 for further development, including a VA examination, in part to determine whether the Veteran has a current psychiatric disorder. The Veteran was afforded a May 2018 VA examination in which the examiner (a VA psychologist) concluded the Veteran did not have a psychiatric diagnosis under DSM-5 criteria. The examiner thoroughly reviewed and addressed the medical and lay evidence of record, as well as the Veteran’s reported symptoms during the examination. He noted to help formally assess a depressive disorder, the Veteran was asked to rate the presence or absence of symptoms making up the criteria for a DSM-5 diagnosis of major depressive disorder. He stated the Veteran reported “sometimes” feeling depressed, sad, empty or having lost interest or pleasure in most activities. The examiner reported he has not experienced weight change; insomnia or hyperinsomnia; psychomotor agitation or retardation; feelings of worthlessness or excessive or inappropriate guilt; diminished ability to think or concentrate; or recurring thoughts of death or suicide. He acknowledged the Veteran did endorse loss of energy, but not on a daily basis. He noted the Veteran has been married for 58 years and has no concerns in his relationship. He concluded, therefore, the Veteran did not meet criteria A of the DSM-5 diagnostic criteria for major depressive disorder. Additionally, the examiner indicated the Veteran did not endorse depressed mood “more days than not” and did not meet the DSM-5 diagnostic criteria for dysthymia. With regard to other mental disorders, he found the Veteran did not endorse symptoms consistent with psychosis, mania, panic, agoraphobia, social phobia, generalized anxiety disorder, obsessive compulsive disorder, and specified phobia. He noted as far as witnessing trauma and stress-related disorders, the Veteran reported witnessing parachute drops in service where fellow soldiers were injured as a result of their primary chute not opening. However, he stated the Veteran reported there were no current distressing memories related to this and he does not suffer from re-experiencing. The examiner indicated overall, the Veteran does not meet the DSM-5 criteria for any mental disorder. The Board notes the Veteran’s representative submitted a responsive August 2018 brief which indicated disagreement with the conclusions of the May 2018 VA examiner. He stated the examiner did not specifically discuss the potential diagnosis of “other specified depressive disorder” and the Veteran’s reported symptoms appear to meet such diagnosis. In this regard, he noted DSM-5 provides “this category applies to presentations in which symptoms characteristic of a depressive disorder that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning predominate but do not meet the full criteria for any of the disorders in the depressive disorders diagnostic class.” The representative indicated examples of presentations suggestive of “other specified depressive disorder” include recurrent brief depression, short-duration depressive episodes and depressive episodes with insufficient symptoms. The representative stated the May 2018 VA examination report is internally inconsistent as it discusses symptoms that appear to support a diagnosis which was not specifically discussed. He noted the failure of the examiner to specifically discuss whether the Veteran meets or does not meet “other specified depressive disorder”, renders the opinion inadequate. The Board finds the preponderance of the evidence is against the claim and service connection for depression must be denied. Despite the August 2018 representative’s assertions, and in consideration of the highly persuasive and probative May 2018 VA psychologist’s opinion, the Board determines the Veteran does not have and has not had an established diagnosis of a psychiatric disorder, to include one manifested by depression. The Board notes a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”). Further, service connection is not precluded solely when there is no diagnosis, if there is nevertheless functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the courts have not held similarly with regard to psychiatric symptoms, as it is generally the province of medical professionals to diagnose or label a mental condition, not the claimant. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (“PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.”). Furthermore, the regulations provide that a diagnosis of a mental disorder must conform to the DSM. See 38 C.F.R. § 4.125(a). The Board finds in this case, the most probative evidence of record supports no psychiatric diagnosis under DSM-5 criteria has been established. While the Veteran, his spouse and his representative have asserted that he suffers from a current psychiatric disorder, the most probative medical opinion of record does not suggest he has such a current psychiatric disorder. The Board finds that the May 2018 VA examiner’s opinion is clear and unequivocal, and based on a thorough examination and review of the record. The examiner provided a complete rationale for his conclusions, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The examiner addressed all the Veteran’s reported symptoms, as well as those found in the record, when he opined that the Veteran does not meet DSM-5 diagnostic criteria for depression or any other mental disorder. The Board acknowledges the Veteran’s contention that he suffers from depression related to his in-service visit to the Dachau concentration camp in Germany. Additionally, as addressed above, the Board is aware of the representative’s August 2018 brief which contends the Veteran presents symptoms which appear to meet a diagnosis of “other specified depressive disorder.” However, neither the Veteran or his representative have been shown to have the requisite medical expertise to be deemed competent to diagnose a psychiatric disorder. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Significantly, unlike disorders that may be observable through lay observation, psychiatric diagnoses are generally the province of a medical professional. While the Board is sympathetic to the Veteran’s reported symptoms, it finds the lay contentions of record, including the August 2018 representative’s brief in support, are afforded less probative weight than the May 2018 psychologist’s medical opinion. Absent a current diagnosis, service connection is not warranted for depression. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and service connection for depression is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel