Citation Nr: 18150981 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-17 112 DATE: November 19, 2018 ORDER Entitlement to service connection for major depressive disorder and unspecified anxiety disorder is granted. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s major depressive disorder and unspecified anxiety disorder began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for major depressive disorder and unspecified anxiety disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to December 1984. These matters come before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge at an October 2018 videoconference hearing. A transcript of the hearing has not yet been associated with the Veteran’s claims file. However, as the Board is granting service connection for the claimed psychiatric disability and remanding the TBI claim for further development, the transcript is not necessary at this time. In light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for a concussion as a claim of service connection for residuals of a TBI. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Entitlement to service connection for major depressive disorder and unspecified anxiety disorder Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that he has current psychiatric disability which had its onset in service following an assault from a fellow service member. The Board concludes, for the following reasons, that the Veteran has current diagnoses of major depressive disorder and unspecified anxiety disorder and that the evidence is at least evenly balanced as to whether these disabilities began during active service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Medical records, including an August 2014 VA psychiatric examination report and a December 2015 VA psychotherapy note show the Veteran has current diagnoses of major depressive disorder and unspecified anxiety disorder. There is also evidence of psychiatric symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current major depressive disorder and unspecified anxiety disorder were incurred in service. In this regard, the Veteran has reported that he began to experience psychiatric symptoms in service following an assault from a fellow service member. His service treatment records and statements from fellow service members confirm that he was involved in an altercation with and assaulted by a service member in September 1983. Moreover, his post-service medical records and lay statements essentially indicate that his psychiatric symptoms have continued in the years since service. The psychologist who conducted the August 2014 VA psychiatric examination opined that the Veteran’s major depressive disorder was not likely (“less likely than not”/“less than 50 percent probability”) caused by his assault in service or any other military event or experience. She reasoned that the Veteran’s longstanding personality disorder was the driver of his major depressive disorder. In other words, he was depressed due to the cumulative effects of his personality disorder on his interpersonal relationships and occupational status. The August 2014 opinion is of little, if any, probative value because it does not take into account the Veteran’s competent reports of continuous psychiatric symptoms in the years since his assault in service. In this regard, a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran is competent to report continuous psychiatric symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous psychiatric symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced an assault and psychiatric symptoms in service and that there have been continuous psychiatric symptoms in the years since service. He has also been diagnosed as having current major depressive disorder and unspecified anxiety disorder. There is no adequate medical opinion contrary to a conclusion that the current major depressive disorder and unspecified anxiety disorder had their onset in service. Hence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current major depressive disorder and unspecified anxiety disorder had their onset in 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 the currently diagnosed major depressive disorder and unspecified anxiety disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). The Board notes that the benefit granted herein associated with the Veteran’s psychiatric claim is service connection for major depressive disorder and unspecified anxiety disorder, although the issue on appeal was previously characterized as entitlement to service connection for posttraumatic stress disorder (PTSD), and there is evidence of diagnosed PTSD during the claim period. Nevertheless, given that there is no evidence to distinguish between all of the symptoms of the Veteran’s psychiatric disabilities, a separate decision as to entitlement to service connection for psychiatric disability other than major depressive disorder and unspecified anxiety disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Thus, in applying the benefit of the doubt doctrine, all the Veteran’s psychiatric symptoms must, therefore, be attributed to his now service-connected major depressive disorder and unspecified anxiety disorder. See 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). REASONS FOR REMAND Entitlement to service connection for residuals of a TBI is remanded. A December 2015 VA psychotherapy note indicates that there may be outstanding and relevant Social Security Administration (SSA) disability and/or supplemental security income (SSI) records. A remand is required to allow VA to request these records. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Louisville Vista electronic records system and are dated to February 2016. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of a TBI, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of a TBI from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the Louisville Vista electronic records system for the period since February 2016; and all such relevant records from any other sufficiently identified VA facility. 3. Obtain the Veteran’s federal disability and/or SSI records from the SSA. Document all requests for information as well as all responses in the claims file. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel