Citation Nr: 18140676 Decision Date: 10/04/18 Archive Date: 10/04/18 DOCKET NO. 15-01 215 DATE: October 4, 2018 ORDER Entitlement to service connection for depression is granted. REMANDED Entitlement to service connection for chronic headaches is remanded. FINDING OF FACT It is at least as likely as not that the Veteran’s current psychiatric disability, diagnosed as depression or dysthymia, is causally related to his active service. CONCLUSION OF LAW The criteria for service connection for depression have been met. 38 U.S.C. §§ 1110, 1154(b) (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Detroit, Michigan. In the appellant’s December 2014 substantive appeal (VA Form 9), he requested a Board hearing, which was subsequently scheduled in July 2018. In correspondence received in June 2018, however, the Veteran’s attorney indicated that the Veteran would like to withdraw his request for a Board hearing. In light of the forgoing, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). The Board acknowledges that the psychiatric disability issue on appeal was characterized by the RO as entitlement to service connection for PTSD. In light of the evidence of record reflecting additional psychiatric diagnoses, the Board has recharacterized the service connection claim more broadly in order to clarify the nature of the benefit sought. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant’s description of the claim, reported symptoms, and the other information of record). The Veteran is not prejudiced by the recharacterization of the issue, as the matter is being granted as detailed below. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Entitlement to service connection for a psychiatric disability Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran asserts that service connection for a psychiatric disability, to include PTSD, is warranted. He contends that the disability is due to his military service in the Republic of Vietnam. In correspondence received in November 2011, the Veteran reported that he started experiencing psychiatric symptoms, which included survivor’s guilt, insomnia, and sleep disturbances, shortly after discharge from military service. In PTSD stressor statements received in April 2012, the Veteran reported that he was airlifted onto a fire base with two 105 howitzers to provide direct fire capabilities supporting 155 howitzers. He indicated that after receiving incoming rounds, a chopper crashed coming in to land. Medics had to be called to remove the injured. He also reported that during his first month, he was stationed in Cambodia where he witnessed dead and wounded bodies shortly after arriving. Available service treatment records are negative for treatment for or complaints of a psychiatric disability or symptoms thereof. Notably, the appellant’s July 1971 military separation examination revealed a normal psychiatric evaluation. The Veteran’s Certificate of Discharge, Form DD-214, indicates he had service in the Republic of Vietnam from May 1970 to July 1971. His military occupational specialty was field artillery. The Veteran was provided a VA examination in July 2012, at which time the examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. However, depression was diagnosed. The examiner concluded that the psychiatric disability was at least as likely as not incurred in or caused by the in-service, event, injury, or illness. He indicated that his opinion was based on his psychological training, education, and clinical experience, as well as from information gleaned from the appellant’s service treatment records and interview of the appellant. In an April 2013 memorandum from the Joint Services Records Research Center Coordinator, it was determined that the information required to corroborate the stressful events described by the Veteran were insufficient to send to the U.S. Army Joint Services Records Research Center and/or insufficient to allow for meaningful research of Marine Corps or National Archives Records Administration records. In correspondence from the appellant’s representative received in September 2018, he argued that the available medical evidence indicates that there is a nexus between the Veteran’s current symptoms and his traumatic experience during military service. Thus, service connection should be granted. Analysis After reviewing the evidence, and resolving doubt in favor of the Veteran, the Board finds that service connection for depression is warranted. The Board finds that the record is sufficient to conclude that the Veteran has a current psychiatric disability, diagnosed as depression. As discussed above, the Veteran was diagnosed as having depression at a July 2012 VA psychiatric examination. Moreover, subsequent VA clinical records show continued notations of depression and dysthymia. (The record shows that the Veteran does not have PTSD. As noted, the VA medical examiner determined that the Veteran does not meet the criteria for a diagnosis of PTSD. VA clinical records do not contain a diagnosis of PTSD in accordance with applicable criteria and neither the Veteran nor his attorney as pointed to any competent evidence of a diagnosis of PTSD). The Board further finds that the record is sufficient to conclude that the Veteran’s current depression is causally related to his active service. The Veteran has asserted that his current psychiatric disability, diagnosed as depression, is due to his experiences in the Republic of Vietnam. See e.g. September 26, 2018 arguments from Veteran’s attorney. The Veteran’s military personnel records confirm that his military occupational specialty included field artillery. His statements are further supported by his service personnel records, with respect to his duty station and responsibilities. As such, the Board finds his statements describing his in-service experiences to be both competent and credible. Moreover, the June 2012 VA examiner indicated that the appellant’s diagnosed depression is due to his military service experiences. There are no other medical opinions of record to contradict their findings. As set forth above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for depression. REASONS FOR REMAND 1. Entitlement to service connection for chronic headaches is remanded. The Veteran asserts that service connection for chronic headaches is warranted. He contends that his headache disability had its onset during military service and has continued since that time. The Board observes that the Veteran was not provided a VA examination in conjunction with his service connection claim. In correspondence received in September 2018, the Veteran’s attorney argued that the Veteran should be provided a VA examination. In this regard, he contended that the Veteran has a chronic headache disability and he has repeatedly attested that he began to suffer from headaches while on active duty. He asserted that such evidence suggests that there may be a nexus between the Veteran’s current headache disability and military service. In light of the foregoing, the Board finds that a VA examination should be provided and an etiological opinion must be obtained on remand. The matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the nature and etiology of his claimed headache disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a current headaches disability and, if so, whether that headache disability was incurred in service or is otherwise causally related to his active service? The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. In rendering the requested opinion, the examiner must discuss the Veteran’s assertion regarding the onset of his headache symptoms. The examiner must also discuss post-service medical records detailing the onset of the Veteran’s headache disability. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel