Citation Nr: 18153394 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-43 806 DATE: November 27, 2018 ORDER Service connection for major depressive disorder is granted. FINDING OF FACT The Veteran has a major depressive disorder that is related to his active service. CONCLUSION OF LAW Major depressive disorder was incurred during wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from November 1968 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A prior claim for post-traumatic stress disorder (PTSD), denied originally in March 2004, does not create a new and material evidence issue due to the narrow finding in that case that the Veteran lacked a PTSD diagnosis. That denial did not specifically address the Veteran’s depression, and is therefore not a final denial for new and material evidence purposes. 1. Entitlement to service connection for major depressive disorder 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (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). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Board 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). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of soundness applies where there is no notation of a defect, infirmity, or disorder at entrance and such cannot be proved by clear and unmistakable evidence. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). There is no mention of mental health issues in the Veteran’s extant enlistment paperwork. The only note of concern in the Veteran’s paperwork is a speeding ticket he received in July 1968. The Board does not recognize this as clear and unmistakable evidence that the Veteran had an adjustment disorder that predated his service and thus the presumption applies and the Veteran is considered to have been sound upon enlistment. See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Veteran earned the Combat Infantry Badge. The Veteran reports that he became anxious and depressed after these experiences and requested a change of MOS to Postal Clerk. This request was accommodated and the Veteran continued his service until he reports that he had a breakdown when ordered to leave for a second tour in Vietnam. See 38 U.S.C. § 1154(b). The Veteran was discharged from service in February 1971 because a psychiatric evaluation showed a character and behavior disorder and concluded that it was unlikely that he would be able to rehabilitate into a satisfactory member of the military. He was honorably discharged and given the separation code 264 (indicating “unsuitability, character and behavior disorders”). The Veteran was separated under Army Regulation 635-212, for unsuitability, but was given an honorable discharge. After his discharge, the Veteran has provided lay statements reporting continued substance abuse and multiple suicide attempts associated with ongoing depression. He also reports being treated and hospitalized for mental health issues in the 1980s. Medical records documenting treatment for depression and anxiety begin in 2002 and continue through the present. Although not able to give himself a medical diagnosis, the Veteran is competent to report his own mental health history and symptoms of depression. Given the Veteran’s treatment for mental health, both in and since service, these statements are also credible. The Veteran’s early service records in fact show multiple examples of good service. Shortly after enlistment, in January 1969, the Veteran was selected for Accelerated Advancement to Private E-2, due to his “dedicated efforts, exemplary conduct and attitude, and demonstrated qualities of leadership.” A report from February 1971 shows either good or exceptional conduct and efficiency ratings from his initial service. While in service, the Veteran earned not only the Combat Infantry Badge, but also the Vietnam Service Medal with a Bronze Service Star and Vietnam Gallantry Cross with Palm Unit Citation. The Board recognizes that the record is conflicted. At a July 2016 examination, the Veteran is reported to have attributed his depression to financial troubles that occurred after his home was damaged by lightning and hurricanes in 2004. However, there are statements expressing depression in the record made by the Veteran prior to 2004. In an August 2010 examination, the Veteran reported that he didn’t feel unhappy or depressed, and was recorded as having appropriate affect and no mood disorder. However, the bulk of the record supports the Veteran’s claim to depression continuing since service. In particular, more recent records reflect a diagnosis of major depression in partial remission.   The record shows an onset of symptoms during service and continuing treatment for major depression after discharge. Therefore, the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.W. Strike, Associate Counsel