Citation Nr: 21004797 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-38 156A DATE: January 28, 2021 ORDER Entitlement to service connection for depression is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a diagnosis of depression separate from his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1960 to December 1964 and from July 1965 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a January 2019 decision, the Board, in pertinent part, denied the Veteran’s claim of entitlement to service connection for depression. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the January 2019 decision. The Court granted the JMR in a December 2019 order. In May 2020, the Board remanded the matter for a VA examination. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for depression is denied. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The Veteran seeks to establish service connection for depression, which he contends is etiologically related to service. Following a review of the evidence of record, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran has a separate diagnosis of depression that is distinct from his already service-connected PTSD. An April 2018 VA mental health examination noted a diagnosis of PTSD and indicated that the Veteran did not have any other mental disorders. Depressed mood was noted as an associated symptom of his PTSD. The VA examiner explained that symptoms related to depressed mood and depression were part of the PTSD diagnosis and did not fulfill the criteria for a separate and distinct psychiatric diagnosis. The examiner concluded that the Veteran did not meet the criteria for a depressive mood disorder and PTSD was the only psychiatric diagnosis. Subsequent to the April 2018 VA examination, a June 2018 VA treatment record reflected a new diagnosis of depression. An October 2020 VA treatment record noted that the Veteran’s score on the Geriatric Depression Scale suggested possible mild depression. The Veteran noted that most of his responses on the assessment related to his physical limitations. A November 2020 VA treatment record noted the assessment that suggested mild depression. The Veteran reported that the main contributor of his depression was his inability to walk. The Veteran was afforded a new VA examination in November 2020. The VA examiner noted that the Veteran reported feeling more depressed as a result of the election, stress related to bills, and “disappointment” over VA’s handling of his business. He was unable to describe how sad he felt, only that he was taking every day as it came. The Veteran denied feeling hopeless, helpless, or worthless. He enjoyed hosting visitors at his home. The Veteran was motivated to ask other people trivia questions and enjoyed playing solitaire on his computer. He reported a good appetite with better sleep due to melatonin. The Veteran did not take any psychiatric medication and he denied feeling overly anxious or worried. Following review of the claims file and examination of the Veteran, the examiner determined that the Veteran did not meet the criteria for a diagnosis of depression separate from his service-connected PTSD. She noted that the Veteran’s depression appeared more situational and was also already accounted for as part of his PTSD diagnosis. The examiner acknowledged the June 2018 diagnosis of depression but determined that the diagnosis was not accurate as the Veteran did not meet the criteria for a separate diagnosis of depression. The Board finds that the November 2020 VA examination with opinion is the most probative medical evidence as to whether the Veteran has a separate diagnosis of depression. The Board acknowledges the Veteran’s assessments that “suggested” mild depression; however, these are outweighed by the opinion of the November 2020 VA examiner, who reviewed his claims file and conducted a thorough examination to determine all current psychiatric diagnoses. After reviewing the Veteran’s record and examination, the examiner confirmed a sole diagnosis of PTSD. Similar to the April 2018 VA examiner, the examiner did not find a separate diagnosis of depression, even after reviewing the Veteran’s treatment records, including the June 2018 diagnosis of depression. The November 2020 examiner explained that the Veteran appeared to suffer from situational depression but did not meet the criteria for a separate diagnosis of depression. Further, the examiner noted that the Veteran’s depression was already accounted for as part of his PTSD diagnosis. Importantly, the current rating assigned to the Veteran for his PTSD specifically contemplates depressed mood. See 38 C.F.R. § 4.150, General Rating Formula for Mental Disorders. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14. Therefore, to assign an additional rating based on the same symptomatology would be tantamount to pyramiding. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (it is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). The Board acknowledges the Veteran’s assertions that he has a separate diagnosis of depression. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, as a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report his feelings of depression. However, the question of whether the Veteran has a psychiatric diagnosis separate and distinct from his PTSD is a question too complex to be addressed by the Veteran, as he lacks the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s contentions are outweighed by the other evidence of record, specifically the November 2020 VA opinion. Accordingly, a preponderance of the evidence is against the claim of service connection for depression that is separate from symptoms of the Veteran’s service-connected PTSD. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, Counsel 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.