Citation Nr: 21005068 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-18 291 DATE: January 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD is granted. FINDING OF FACT There is an approximate balance of positive and negative evidence as to the nexus between the Veteran’s current psychiatric disorder and active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder other than PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.125(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to May 1974. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office. In June 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is associated with the electronic claims file. The Veteran was provided with an opportunity for an additional hearing with a different VLJ, but did not express his interest. The Board notes that the Veteran was initially pursuing service connection claims for posttraumatic stress disorder (PTSD) as well as other psychiatric disorders including anxiety disorder and major depressive disorder (MDD). After the Board’s previous denial of the Veteran’s service connection claim for an acquired psychiatric disorder including PTSD and MDD, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). As the Veteran indicated that he does not wish pursue his appeal for service connection for PTSD, the Court granted a February 2019 order for a Joint Motion for Partial Remand to vacate the Board's decision on service connection claim for an acquired psychiatric disorder other than PTSD, and remanded the matter for readjudication. In July and December 2019, the Board remanded the matter for further development. Now the matter is returned to the Board. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a 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). When a veteran’s claim was certified for appeal before the Board after August 4, 2014, any diagnoses for psychiatric disabilities rendered for purposes of obtaining VA benefits must use the DSM-V criteria. 38 C.F.R. § 4.125(a) (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. First, the evidence of record shows that the Veteran has a current diagnosis of MDD under DSM-V criteria. See e.g., January 2020 Mental Disorders Disability Benefits Questionnaire. Thus, the Board finds that the first Shedden element for service connection is met. Next, as to the in-service incurrence his psychiatric disorder, the Veteran competently testified that he had experienced life-threatening confrontations with the locals while stationed in Okinawa. Although the Veteran’s service record does not show any incident reports or treatments related to a psychiatric disorder, in light the Veteran’s competent and credible testimony, the Board resolves reasonable doubt in the Veteran’s favor and finds that the second Shedden element for service connection is also met. In regard to the nexus between the Veteran’s current psychiatric disorder and service, the Board notes that three medical opinions are of record. In May 2013, the Veteran’s private psychologist J.T. opined that it is as likely as not that Veteran's anxiety disorder NOS could be seen as secondary to the incidents in Okinawa. Dr. J.T. provided that the Veteran continues to report trauma-related nightmares, occasional distressing intrusive thoughts, avoidance behaviors, and some symptoms of hyper arousal and depression. However, a VA examiner opined in January 2016 that the Veteran does meet criteria for MDD, but it is not as likely as not that the psychiatric condition was a result of his military service. The examiner provided that the Veteran’s symptoms of depression are the result of maladaptive personality traits that interfere with social relationships and ability to cope with stressors. On the latest VA examination conducted in January 2020, the examiner opined that it is at least as likely as not that the Veteran’s difficulties with depression stem from experiencing distressing dreams, memories, and subsequent negative interpersonal relationships secondary to the significant or possibly traumatic experiences that he endured while stationed in Japan. The examiner concluded that the Veteran’s current mental health symptoms are believed to be less influenced by occupational stressors, contrary to the reports from the previous evaluation, since he is not currently employed. Based on above, the Board finds that there is an approximate balance of positive and negative evidence as to the nexus between the Veteran’s current psychiatric disorder and active duty service. Thus, the Board resolves reasonable doubt in the Veteran’s favor and finds that the Veteran’s entitlement to service connection for an acquired psychiatric disorder other than PTSD is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.125(a) (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.