Citation Nr: 21063319 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-37 833 DATE: October 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder other than PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD, including major depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1987 to February 1992 and May 1994 to March 1995. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2017 rating decision issued by the Department of Veterans Affairs (VA). See May 2018 Notice of Disagreement (NOD); June 2018 Statement of the Case (SOC); July 2018 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in an October 2018 hearing. See October 2018 Hearing transcript. In June 2019, the Board remanded the claim of entitlement to service connection for an acquired psychiatric disorder for further development of the evidence. June 2019 Board Decision. In November 2019, the Board separated the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder into a claim of entitlement to service connection for PTSD and for an acquired psychiatric disability other than PTSD, to include major depressive disorder. November 2019 Board Decision. The Board then denied both claims. Id. The Veteran appealed the claims to the Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Remand, the claims were remanded to afford the Veteran the opportunity for a VA examination to assess his mental health condition. See January 2021 CAVC Decision. In June 2021, the Board remanded the claims pursuant to the January 2021 CAVC decision. June 2021 Board Decision. On remand, the agency of original jurisdiction (AOJ) developed the evidence and granted the Veteran's claim of entitlement to service connection for PTSD. July 2021 Rating Decision. As this is a full grant of the benefit sought on appeal for this issue, it is no longer in appellate status or before the Board. The AOJ continued the denial of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder. July 2021 Supplemental Statement of the Case. The claim is now back before the Board. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder. The Veteran asserts that his "PTSD/Mental Condition" is associated with his time in service. May 2018 NOD. The Veteran testified to having stress and because depressed because he is afraid of helicopters due to his experiences during service. October 2018 Hearing Transcript. The Veteran testified that he witnessed a helicopter crashing during service and was afraid it would injure him. Id. Hearing a helicopter now reminds him of his service stressor. See id. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Board finds that the Veteran does not have a current acquired psychiatric disability other than PTSD, including major depressive disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. §§ 1110, 1131. Hence, where the evidence does not support a finding of a current disability of an acquired psychiatric disability other than PTSD upon which to predicate the grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was afforded a July 2021 VA examination for his PTSD and mental conditions. The examiner found the Veteran met the criteria for PTSD, with that include depressed mood, anxiety, and flattened affect. Id. The examiner opined that the Veteran's PTSD was at least as likely as not related to service but found that his symptoms did not warrant an independent diagnosis of another acquired psychiatric disorder, including major depressive disorder. July 2021 VA Examination Medical Opinion. The VA examiner opined that his depression symptom is part of his PTSD. See id. The VA examiner is a medical professional qualified to evaluate the Veteran's mental health condition and provided detailed findings and rationale to support her opinion. The Board finds the examiner's opinion to be highly probative for these reasons. The Board recognizes that the medical treatment evidence shows various diagnoses or references to depression or major depressive disorder. See, e.g., March 2019 VA treatment evidence; June 2020 Private medical treatment evidence; September 2020 VA treatment evidence. However, the Veteran's treatment providers did not consider whether the Veteran's symptoms were actually part of his PTSD. The Board, thus, finds these diagnoses to be less probative. As the Veteran's reported mental health symptoms have been found as part of his PTSD diagnosis and disability rating, there are no other reported mental health symptoms to consider. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the symptoms related to a specific body system or joint involved must functionally impair the Veteran to constitute a disability). The Board finds that the overall lay and medical evidence is highly probative evidence against finding that the Veteran has a current acquired psychiatric disability other than PTSD. The Board notes that the Veteran's reported mental health symptoms, including depression, have been considered and rated under his service connected PTSD disability. In other words, while the Board finds that the evidence is against finding the Veteran has another service-connected mental health condition, his symptoms are considered and compensated under his PTSD. Because the first element of service connection, i.e., a current disability, has not been met, entitlement to service connection for an acquired psychiatric disability other than PTSD, including major depressive disorder, must be denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.