Citation Nr: 1807164 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-28 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for major depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDING OF FACT The Veteran's presently diagnosed major depressive disorder is as likely as not related to his service connected posttraumatic stress disorder (PTSD); in the alternative, it is as likely as not aggravated by his other service-connected disabilities, to include diabetes mellitus. CONCLUSION OF LAW Affording the Veteran the complete benefit of the doubt, the criteria for service connection of major depressive disorder have been met. REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in July 2009. Further to the extent that the Board is granting the claim on appeal, any failure on VA's part in complying with the duty to notify and assist would constitute harmless error. Service Connection The Veteran seeks service connection for major depressive disorder. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2017). The Board finds that service connection should be granted. The Veteran has a confirmed present diagnosis of major depressive disorder. He also has a diagnosis of posttraumatic stress disorder (PTSD) which has been granted service connection. The Veteran is also service-connected for multiple myeloma, diabetes mellitus, tinnitus, and bilateral hearing loss. A July 2010 initial PTSD examination confirmed a diagnosis of both PTSD and major depressive disorder, but did not provide an etiology opinion with regard to the cause of his depression. Nonetheless, the examiner stated that symptoms for both have contributed to significant impairment in social and occupational functioning, and that separate GAF (Global Assessment of Functioning) scores could not be assigned for the two disabilities without resort to speculation, implying that the two diagnoses and resulting symptoms were intertwined. The Veteran was afforded a VA examination in September 2011 in connection with his PTSD claim, which also addressed his various other psychiatric diagnoses. The examiner concluded that PTSD was secondary to active service, but determined that the Veteran's major depressive disorder was less likely than not related to the Veteran's claimed in-service stressors because the Veteran denied having symptoms of depression after discharge, and his contemporary treatment records do not show treatment for depression until approximately 2001, due to job problems and marital issues. The examiner did not provide an opinion regarding secondary service connection. In support of his claim, the Veteran submitted a letter from his treating psychiatrist at the VA Medical Center (VAMC) in Indianapolis, dated October 19, 2011. In that letter, the treating physician noted his PTSD and depression diagnoses, then stated that his depression is complicated by several co-morbid medical conditions, to include diabetes and PTSD. In this case, the Board will afford the Veteran the benefit of the doubt and find that his major depressive disorder is so intertwined with his PTSD so as to warrant service connection. In the alternative, the Board has found no evidence to contradict the opinion of the treating psychiatrist who found the Veteran's depression and PTSD to be aggravated by his service-connected diabetes mellitus. As such, the Board will grant service connection for major depressive disorder. However, the Veteran should be aware that no change in his actual benefits is expected, as the symptomatology associated with his depression would be duplicative and overlapping with his already service-connected PTSD. The Board notes that a separate rating would constitute the "pyramiding" of ratings for the same underlying disorder, which is prohibited under VA law. See 38 C.F.R. § 4.14 (2016); Cf. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). ORDER Service connection for major depressive disorder is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs