Citation Nr: 18141225 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 11-25 913 DATE: October 10, 2018 ORDER Entitlement to service connection for depression with anxiety is granted. FINDING OF FACT The medical evidence is in equipoise as to whether depression with anxiety is related to an in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor depression with anxiety was incurred inservice. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1974 to October 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of a VA Regional Office (RO). The Veteran testified before the Board in April 2014. A transcript of the hearing is included in the electronic file. In December 2014, the Board remanded the issue for further development. In May 2016, the Board denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court granted a joint motion for partial remand vacating that portion of the May 2016 decision which denied entitlement to service connection for an acquired psychiatric disorder and remanding the case to the Board for readjudication. In October 2017 the Board again remanded the issue of entitlement to service connection for an acquired psychiatric disorder for development. In May 2018 the Board requested an outside medical opinion addressing the etiology of any diagnosed acquired psychiatric disorder. Service connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for a disorder to be service connected, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran claims that he suffers from depression as a result of his service connected disabilities. After considering the pertinent evidence in light of the governing legal authority, and resolving reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection for depression with anxiety is in order. In this regard, the claimant’s service treatment records include an August 1974 Report of Medical History which records complaints of trouble sleeping. In July 1979, the claimant reported a history of frequent trouble sleeping, memory loss or amnesia, and nervous trouble. Significantly, at no time was an acquired psychiatric disorder ever diagnosed while the appellant served on active duty. Moreover, there is no competent evidence that a psychosis was compensably disabling within a year of the claimant's separation from active duty. VA treatment records indicate he was diagnosed with depression in April 2010. At a November 2015 VA examination the Veteran reported that he felt nervous if others were in the area while he worked on machinery, and occasionally feeling "down in the dumps" due to physical pain he had to deal with. Following a full mental status examination the examiner found that the Veteran did not have any acquired psychiatric disorder to include posttraumatic stress disorder. In a July 2018 medical opinion J.D., a licensed psychiatrist documented the Veteran’s history of service connected disabilities. The opinion highlights the Veteran’s service treatment records indication of nerves on this medical history report and determined that the November 2015 VA examination was not accurate. Rather, the medical specialist opined that it is as least as likely as not that the Veteran’s diagnosed psychiatric disorder is related to service. The July 2018 medical opinion is based upon review of the Veteran’s medical records, his reported history, and VA examinations. Further it supports a conclusion that depression began in service. The medical specialist considered the prior VA examinations and explained why the negative 2015 VA opinion was likely a mistake. The collective evidence is sufficient to conclude that the Veteran’s current depression is related to his service. Given the evidence of record, the Board finds that the competent and probative evidence is in relative equipoise as to whether depression with anxiety is related to service. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for service connection for depression with anxiety are met. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel