Citation Nr: 18159199 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 09-29 038 DATE: December 19, 2018 ORDER Entitlement to service connection for unspecified depressive disorder with anxious distress is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s diagnosed unspecified depressive disorder with anxious distress is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for unspecified depressive disorder with anxious distress have been met. 38 U.S.C. § 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training (ACDUTRA) from April 1987 to August 1987 and active duty service from November 1990 to June 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office. In September 2010, the Veteran and his wife testified before the undersigned Veterans Law Judge; a transcript of which is attached to the claims file. This matter was most recently before the Board in March 2017, when it was remanded for additional development, to include scheduling for a new examination. Service Connection for a Psychiatric Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. The Veteran contends that his currently diagnosed psychiatric disorder is related to SCUD attacks he experienced while in combat during Desert Shield/Desert Storm. Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran has a psychiatric disorder that is related to service. The RO has conceded in-service combat-related stressors of enemy SCUD attacks. In April 2008, the Veteran underwent a VA examination, which shows a diagnosis of anxiety disorder, NOS, but no associated nexus opinion. April 2011 and July 2014 VA examinations diagnosed depressive disorder NOS, but provided negative nexus opinions. No etiology opinion regarding anxiety disorder was of record at that time. As such, in March 2017, the Board remanded the claim to schedule the Veteran for a psychiatric examination to determine the etiology and nature of his psychiatric disorder, specifically anxiety disorder. In April 2017, a VA examiner diagnosed unspecified depressive disorder and concluded there was no relation with the condition and active service. The examiner rationalized that service treatment records noted no diagnosis or treatment for a psychiatric disorder and the Veteran’s current depressive disorder was related to occupational and social stressors that occurred subsequent to service. However, weighing in favor of the Veteran’s claim is a November 2016 private psychological evaluation. During the evaluation, the Veteran described his fear of SCUD missile attacks while serving in the Gulf War. The Veteran also reported symptoms of anxiety, depression, difficulty concentrating, and social withdrawal, which he attributed to his experiences in service. The examiner diagnosed the Veteran with unspecified depressive disorder with anxious distress and panic disorder, by history. The examiner found the Veteran’s psychiatric diagnoses were related to his military service. The Board finds that both the November 2016 psychological evaluation and April 2017 VA examination are probative. The examiners reviewed the claims file, interviewed the Veteran, performed psychiatric testing, provided a diagnosis, and rendered opinions supported by a well-reasoned rationale. The Board also notes the competent and credible testimony provided by the Veteran and his wife at the September 2010 Board hearing, indicating the Veteran’s psychiatric symptoms occurred in service and continued upon his return from service. For these reasons, the Board finds that the weight of the competent and probative evidence is at least in relative equipoise on the question of whether the Veteran’s currently diagnosed psychiatric disorder (unspecified depressive disorder with anxious distress) is related to service. Accordingly, and resolving reasonable doubt   in the Veteran’s favor, the Board finds that service connection for unspecified depressive disorder with anxious distress is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel