Citation Nr: 1822011	
Decision Date: 04/13/18    Archive Date: 04/25/18

DOCKET NO.  13-06 193	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder NOS.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from November 1989 to August 1990.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  


FINDINGS OF FACT

1.  The Veteran's depressive disorder NOS clearly and unmistakably preexisted service, but was not clearly and unmistakably not aggravated by service; the presumption of soundness at enlistment is not rebutted.

2.  The Veteran's depressive disorder NOS first manifested in service.


CONCLUSION OF LAW

Depressive disorder NOS was incurred during service.  38 U.S.C. §§ 1110, 1111, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, OR (2) where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease (a) existed before acceptance and enrollment and (b) was not aggravated by such service.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir 2004).  

The Veteran contends that she was sexually assaulted in service and that she now has PTSD as a result.  The medical evidence shows that she does not meet the criteria for a diagnosis of PTSD, but she has been diagnosed with depressive disorder NOS and chronic stress disorder at a VA examination and in VA treatment notes.  Therefore, she has a currently-diagnosed disorder with respect to the claim.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).

The enlistment examination performed in October 1989 is negative for any reference to a diagnosed psychiatric disorder.  Therefore, the Veteran is presumed to have been sound upon her entrance in service under the first criteria for soundness as no defects, infirmities, or disorders were noted at the time of her enlistment.

As to the second criteria, the presumption of soundness can be rebutted by clear and unmistakable evidence showing that a disability preexisted service.  In this case, the February 2012 VA examiner elicited details about the Veteran's pre-military social and medical history, noting that she reported dealing with depression prior to service and with several situations that contributed to her depression, which is sufficient for a finding that her depression NOS was present prior to service.  

However, that is not the end of the inquiry.  In a May 2012 addendum, the examiner opined that the Veteran's depressive disorder NOS was at least as likely as not exacerbated by service.  Therefore, there is not clear and unmistakable evidence that her depressive disorder was not aggravated by service.  Accordingly, the presumption of soundness is not rebutted and, under the law, the question is one of service connection, not aggravation.  

Therefore, the analysis turns to service connection on a direct basis.  As stated, the May 2012 addendum by the VA examiner indicated that the Veteran's depressive disorder NOS was present during service.  Thus, in accordance with VA law, for the purposes of this decision, the competent and probative evidence establishes that her depressive disorder first manifested in service, and so her currently diagnosed depressive disorder NOS was incurred in service.  The appeal is granted.



ORDER

Service connection for depressive disorder NOS is granted.



______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs