Citation Nr: A20007324 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191031-40482 DATE: April 30, 2020 REMANDED Entitlement to service connection for a psychiatric disability of anxiety and depression is granted. FINDING OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding that the Veteran has a psychiatric disability of anxiety and depression that is directly related to active service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability of anxiety and depression have been met. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1984 to October 1984, with additional service in the United States Army Reserves. An October 2019 rating decision denied service connection for a psychiatric disability, claimed as anxiety and depression. In October 2019, the Veteran requested a direct review of an appeal by the Board of Veterans’ Appeals (Board). Consequently, this case comes before the Board on appeal from the October 2019 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO). As the current appeal stems from the Veteran’s selection of the direct review by a Veterans Law Judge, in which he acknowledged that the review will be based upon the evidence submitted to VA at the time of the previous RO decision on the issue or issues on appeal, only evidence through the date of the October 2019 Rating Decision will be considered. VA will not seek additional evidence on behalf of the Veteran as part of the higher-level review and will proceed with adjudication. The Veteran originally submitted separate claims of entitlement to service connection for anxiety and depression. The Board has recharacterized both claims as a single claim for service connection for a psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a psychiatric disability, claimed as anxiety and depression. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.30. In order to establish service connection for a claimed disability, there must be (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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). In considering the evidence of record under the laws and regulations, the Board concludes that service connection is warranted for a psychiatric disability. The Veteran contends that a current psychiatric disability is the result of service. Specifically, the Veteran contends that the way he was treated during basic training caused him to develop the current psychiatric disabilities. An October 2019 rating decision found that the Veteran was diagnosed with generalized anxiety disorder. The Board is bound by a favorable finding. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. The Veteran was last provided a VA examination in September 2019. During that examination, the examiner diagnosed generalized anxiety disorder and unspecified depressive disorder. After in-person examination and review of the claims file, the examiner opined that the psychiatric disabilities were at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had no mental health issues prior to service and now had clear symptoms of generalized anxiety disorder and unspecified depressive disorder, which were related to the claimed in-service stressor. The examiner further explained that the symptoms meet DSM criteria for the disorder. The examiner concluded that it was at least as likely as not (50 percent or greater probability) that depression and anxiety were incurred in or caused by the anxiety due to basic training during service. In an addendum opinion 14 days later, the same examiner stated that, based upon the Veteran's statements and a review of the available records, the Veteran did appear to meet criteria for generalized anxiety disorder and unspecified depressive disorder that was incurred in or caused by anxiety due to basic training while in service. The examiner explained that, while VA records did not indicate formal diagnoses, the Veteran reported, during medical encounters, mild to moderate anxiety and depression symptoms along with sleep difficulties. The Veteran indicated that his primary treatment has been with a non-VA provider, who documented in a letter that the Veteran had reported anxiety, sleep difficulty and flashbacks to his time in service for at least 10 years. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the September 2019 VA examination and addendum and finds them to be credible, competent, and probative as they are supported by detailed rationale and provided by a trained medical professional who specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion she reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, after a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise in regard to a finding that a psychiatric disability is due to active service. The Board will resolve reasonable doubt in favor of the Veteran and finds that a psychiatric disability was incurred in service. The examiner provided both a positive and negative opinion, and also considered a private physician’s letter which attributed a mental disorder to service. The Board finds that level of uncertainty represents equipoise, or an approximate balance of positive and negative evidence. Therefore, the Board concludes that service connection for a psychiatric disability is warranted as the evidence shows that it is at least as likely as not that the psychiatric disability was incurred in service and continued after active duty. Accordingly, as the evidence is in equipoise for the claim of entitlement to service connection for a psychiatric disability, the claim must be and is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.