Citation Nr: 18141516 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-25 759 DATE: October 10, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder and anxiety disorder, is granted. FINDING OF FACT The Veteran has been diagnosed with major depressive disorder and anxiety disorder due at least in part to combat. CONCLUSION OF LAW The criteria for service connection for major depressive disorder and anxiety disorder are met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from September 1987 to September 1993. His awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Houston, Texas which denied the Veteran’s claim for a psychiatric disability, which it characterized as major depressive disorder. However, a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given the diagnoses of major depressive disorder and anxiety disorder, The Veteran timely filed a notice of disagreement (NOD) and substantive appeal via a VA Form 9. In November 2016, the Veteran testified in a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. 1. Entitlement to an acquired psychiatric disorder, to include major depressive disorder and anxiety Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted, the Veteran received the Combat Action Ribbon. This is one of the decorations that are considered evidence of combat participation. VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017). The fact that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). There are particular requirements for establishing service connection for posttraumatic stress disorder (PTSD) in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-IV; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304 (f), 4.125(a). If a veteran engaged in combat and the claimed stressor is related to combat, the veteran's lay testimony alone generally is sufficient to establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(2). The Veteran contends that his current psychiatric disability is due to his active military service, to include combat. Service treatment records (STRs) do not reflect diagnosis, treatment, or complaint of a psychiatric disability. Military personnel records reflect that the Veteran underwent alcohol abuse treatment. Post-service, a September 2012 VA mental health note from a psychotherapy session revealed a diagnosis of anxiety disorder, not otherwise specified (NOS) and depression. The examiner, a registered nurse, reported that the Veteran had developmental trauma and some military trauma when his squad was killed in a hurricane while in the Philippines. An April 2013 VA examination report reflects that the examiner found that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-IV criteria. He found that the Veteran’s current diagnoses included major depressive disorder and personality disorder, NOS with antisocial and paranoid features. The examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that the Veteran’s depression cannot be chronologically linked to his time in the military. He reported that major depression does not have a recognizable etiology and major depression is not a stress disorder nor is caused by military activities. In his May 2014 NOD, and in numerous statements submitted, the Veteran reported that his major depressive disorder began during his military service and has continued to this day. He reported that he experienced incidences in the military that resulted in his depression, including an accident that resulted in the death of a sergeant. He also reported that when he was at sea, eight marines in his squadron died as a result of an accident. He reported that following these accidents, he self-medicated with alcohol in order to deal with the depression. He reported that he participated in alcohol treatment in service. In a November 2015 VA examination report, the VA psychologist found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. She reported that the Veteran had another mental disorder diagnosis but did not note what the diagnosis was. She noted that the he reported several military stressors and not all reported incidents meet criterion A specifications. However, she found that when taken in the aggregate, the Veteran can be said to have experienced a criterion A stressor. She reported that he did not endorse symptoms of PTSD related to these stressors. She stated that the Veteran indicated that there is a multitude of things going on in his life and he did not attribute all of his problems to the military. He reported that when he thought of his stressors, he became sad. The psychologist reported that there was no impairment of functioning related to any reported symptoms. She stated that the problems that he endorsed may be accounted for best by an Axis II disorder. During the November 2016 Board hearing, the Veteran testified that he was involved in two major training accidents with loss of life in the military. He reported that some of his friends died in the second accident. He testified that it was hard to deal with and the had no one to talk to about it. He reported that he was diagnosed with alcohol dependence and continued to have issues with the loss of life and friends following separation. He reported that he went to prison for 13 years so he could not file a claim. He reported that he tried to suppress his symptoms since the incidents. He reported that before service, he was an honor student, participated in athletics, and was involved in the community. He said following service, he did not want to help anyone. The Veteran’s representative argued that the April 2013 VA examination was conducted by a medical doctor and not a psychologist or psychiatrist and the rationale was inadequate. Upon review of the evidence of record, the Board finds that service connection for major depressive disorder and anxiety disorder are warranted. Initially, the Board finds that the Veteran has a current diagnosis of major depressive disorder and anxiety disorder as noted in the September 2012 VA mental health treatment note and April 2013 VA examination report. Therefore, the Veteran has met the current disability requirement. Additionally, the Veteran’s psychiatric disability due to combat and service has been accepted as satisfying the in-service disease or injury element. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record); Reeves, 682 F.3d 988, 999 (Fed. Cir. 2012). Based on the service records, the evidence submitted by the Veteran, and by applying 38 U.S.C. § 1154 (b), the Board concludes that the Veteran suffered from a psychiatric disability during his military service in part due to his combat operations. Therefore, the in-service injury element has been met. Thus, the remaining issue is whether the current psychiatric disability, specifically major depressive disorder and anxiety disorder, is related to his in-service combat and the incidents to which he testified. The April 2013 and November 2015 VA examination reports reflect a lack of relationship between the Veteran’s current psychiatric disability and service. However, the April 2013 examination was conducted by a medical doctor who did not provide an adequate rationale. He did not provide reasoning for why the Veteran’s depression was not linked to his service. The November 2015 VA psychologist did not identify what diagnosis the Veteran had, did not take into consideration the Veteran’s statements, and did not provide a nexus opinion with a rationale. Thus, these opinions are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The September 2012 VA mental health note from a psychotherapy session revealed a positive medical opinion based on the Veteran’s statements as well as an examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). While there were other possible sources identified by this nurse and VA examiners as causes of the Veteran’s psychiatric disability, there is no requirement in the statutes or regulations pertaining to psychiatric disorders that the current disability be due entirely to combat stressors or military service. In addition, although the September 2012 positive medical opinion was given by a registered nurse, this does not diminish its probative value. See Cox v. Nicholson, 20 Vet. App. 563, 568-569 (2007) (a nurse, nurse practitioner, or other non-physician health care provider may provide competent medical evidence as long as the examination and opinions themselves are not incomplete or otherwise insufficient). In addition, the fact that the claimed cause of the Veteran’s psychiatric disability has been established by his testimony does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the psychiatric disorder itself while in service. Reeves, 682 F.3d at 999. Given the Veteran’s combat and in service and the diagnosis of major depressive disorder and anxiety based in part on his combat service, combined with his competent and credible lay testimony, the evidence is at least evenly balanced as to whether the major depressive disorder and anxiety is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for major depressive disorder and anxiety disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Given that the Veteran was not diagnosed with PTSD, and will in any event be compensated for all of his psychiatric symptoms, discussion of the issue of entitlement to service connection for PTSD is not warranted. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel