Citation Nr: 18140862 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 12-17 495 DATE: October 9, 2018 ORDER Entitlement to service connection for depression is denied. FINDING OF FACT The Veteran’s depression did not manifest during service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1976 to May 1977. He served a second period of active duty from May 1979 to September 1980, but the character of discharge for this service is other than honorable, and has thus been found to be a bar to VA benefits. See March 1981 Administrative Decision. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a central office hearing. The transcript of the hearing is of record. By way of background, in September 2017, the Board remanded the issue for further evidentiary development and adjudication. That development has been accomplished, and the claim has now been returned to the Board for further action. 1. Entitlement to service connection for depression is denied. Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Additionally, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. However, the Veteran is not service connected for any disabilities, so this provision is inapplicable. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the May 2017 hearing, the Veteran alleged that he was beaten by seven or eight guys on post. The Veteran also argued that he was treated rudely by “white people.” See June 2007 Correspondence. The Veteran contended that he was slapped in the face by his superior, who was a racist. See October 2007 Correspondence. After a review of the record, the Board finds that although the Veteran has a current diagnosis of depression, he does not meet the standards for service connection as the preponderance of the evidence supports a finding that there is no medical nexus between active service and the current disability. Regarding the first element of direct service connection (a current disability), the medical evidence reflects a diagnosis of depression, and as such the Board finds that the first element has been met. See June 2013 CAPRI. Concerning the second element, the service treatment records are silent for any complaints, symptoms, or diagnosis of any psychiatric condition during his service. Specifically, the service treatment records show normal psychiatric condition, including the September 1976 induction and April 1977 separation examination. See May 2015 STR – Medical records. Furthermore, there were no records of any “breakdowns” or general complaints of nervousness or depression. As for the third element, the Board finds that the evidence of record does not support a finding that the Veteran’s current diagnosis of depression manifested or otherwise originated during his period of service, or is otherwise related to his military service. For instance, in the May 2018 VA examination, the examiner opined that the Veteran’s depression is less likely as not incurred in or caused by his military experiences. In support of her opinion, the examiner stated that the Veteran’s depression was more than likely attributed to his traumatic childhood experiences. Although the Veteran stated that he was slapped by his superior and shoved against the wall in front of everyone and that in a separate incident seven or eight guys beat him during service, the Veteran also reported traumatic childhood experiences. For instance, the Veteran reported that he was physically and sexually abused by his step-father. The Veteran also admitted to stealing, robbing, and selling marijuana prior to military as his step-father did not support him financially. In addition, the Veteran stated that he was withdrawn and depressed and experimented with marijuana and acid prior to the military. For the foregoing reasons, the examiner determined that the Veteran’s depression is less likely as not caused by or a result of his military experiences. The Board finds that the May 2018 VA examiner’s opinion is persuasive because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Even the post-service treatment records show that there were no signs, symptoms or treatment of any psychiatric disability until approximately 1996, more than 15 years after service. Even then, the treatment records show that the Veteran predominantly complained of the physical and emotional abuse by his step-father, the sexual abuse from his step-father’s friend, and the racial discrimination that he felt in prison. See June 2013 CAPRI. It was noted that the Veteran had unresolved anger and frustration over his abuse as a child and treatment in prison. Id. Accordingly, the Board finds that the VA examiner’s opinion is persuasive and assigns it high probative weight. The Board notes the August 2013 medical statement from Dr. M.K. See August 2013 Medical Treatment Record – Government Facility. The Board finds that Dr. M.K.’s statement was a summary of the Veteran’s treatment session and not a medical opinion as the psychologist stated that one of the reoccurring themes of the individual psychotherapy sessions has been the Veteran’s long-standing anger about mistreatment and racism that he encountered over the course of his two enlistments between 1976 and 1980. Dr. M.K.’s statement is void of any nexus opinion. In addition, Dr. M.K.’s statement references the Veteran’s second enlistment which the Veteran is barred from obtaining VA benefits. As such, the Board finds this medical statement has little to no probative value as to the issue of nexus. The Board acknowledges the Veteran’s lay statement and the third-party statement on file that the physical altercations and racial discrimination caused the Veteran’s depression. See July 2014 Buddy/Lay Statement; June 2011 Congressional; and June 2007 Correspondence. However, such an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); 38 C.F.R. § 3.307(a)(6)(i). There is no evidence of record reflecting that the Veteran or the author of the statement have the specialized training necessary to offer an opinion as to nexus. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran’s depression and service. In conclusion, although the Veteran has established a current disability, the preponderance of the evidence does not establish that there was a link to his military service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel