Citation Nr: 18155745 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-20 839 DATE: December 6, 2018 ORDER Entitlement to service connection for depressive disorder is granted. Entitlement to service connection for a shoulder disability is dismissed. Entitlement to service connection for a cervical spine disability is dismissed. Entitlement to a compensable evaluation for gastroesophageal reflux disease (GERD) is dismissed. Entitlement to a rating in excess of 20 percent for left knee meniscus tear and degenerative arthritis, status post-surgery, is dismissed. Entitlement to a rating in excess of 20 percent for lumbar strain is dismissed. Entitlement to a compensable rating for a bilateral hearing loss disability is dismissed. FINDINGS OF FACT 1. The Veteran’s depressive disorder was incurred in and is related to his active duty service. 2. During his November 2018 Board hearing, the Veteran explicitly and unambiguously withdrew the issues of entitlement to service connection for a shoulder disability and a cervical spine disability, and entitlement to increased ratings for GERD, left knee meniscus tear and degenerative arthritis, status post-surgery, lumbar strain, and a bilateral hearing loss disability with full understanding of the consequences of such action. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for withdrawal of entitlement to service connection for a shoulder disability are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for withdrawal of entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 4. The criteria for withdrawal of entitlement to a compensable evaluation for GERD are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for left knee meniscus tear and degenerative arthritis, status post-surgery, are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 6. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for lumbar strain are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 7. The criteria for withdrawal of entitlement to a compensable rating for a bilateral hearing loss disability are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to September 1981, April 2002 to September 2002, May 2005 to September 2005, October 2006 to January 2007, May 2007 to November 2010, and in September 2001 and October 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and July 2014 rating decisions by the Department of Veterans Affairs (VA). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for depression to encompass any acquired psychological disorder, to include depression and bipolar disorder. During the course of the appeal, the Veteran was granted service connection for obstructive sleep apnea and erectile dysfunction. See October 2015 and February 2016 rating decisions. Because those decisions represent a full grant of the benefits sought on appeal, those issues are not before the Board. 1. Entitlement to service connection for a psychological disorder, to include depression and bipolar disorder. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has conflicting diagnoses for his psychological symptoms, but a VA examiner diagnosed unspecified depressive disorder. See August 2015 VA examination. The evidence is overwhelming that the Veteran experienced severe psychological symptoms during his last period of active duty service, having at least one in-patient hospitalization, and was eventually discharged due to his major depressive disorder diagnosis. See, e.g., November 2007, June 2008, and June 2010 service treatment records (STRs). In February 2012, a physician opined that the Veteran did not have bipolar disorder because his symptoms did not ever meet the full diagnostic criteria for a manic episode, and his symptoms were more appropriately attributed to major depressive disorder. The physician noted that the Veteran continued to experience functionally impairing depressive symptoms since his service and opined that the date of onset for the Veteran’s major depressive disorder was November 2007. See February 2012 government treatment records. While the Veteran has undergone several VA psychological examinations, see June 2011 and December 2012 VA examinations, only one examiner provided an opinion for the cause of the Veteran’s depressive disorder, rather than a different psychological disorder. The August 2015 VA examiner’s negative opinion is based on an inadequate factual premise, because the examiner relied on the incorrect observation that the Veteran’s STRs are silent for mental health treatment; no other adequate rationale was provided. As a result, the examiner’s opinion is given no probative weight. After considering that the record reflects persistent psychological symptoms since service that have been attributed to a depressive disorder and the February 2012 physician’s opinion that the Veteran’s depressive disorder had its onset in service, the Board finds that service connection for depressive disorder is warranted. 2. All remaining issues. During his November 2018 Board hearing, the Veteran explicitly and unambiguously withdrew the issues of entitlement to service connection for a shoulder disability and a cervical spine disability, and entitlement to increased ratings for GERD, left knee meniscus tear and degenerative arthritis, status post-surgery, lumbar strain, and a bilateral hearing loss disability with full understanding of the consequences of such action. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, as the Board has no further jurisdiction to review an appeal on these matters, they are dismissed. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel