Citation Nr: 21065092 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-06 894 DATE: October 25, 2021 ORDER Service connection for a major depressive disorder is granted. FINDING OF FACT The Veteran has a major depressive disorder that is related to his active service. CONCLUSION OF LAW The criteria for service connection for a major depressive disorder have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to August 1991 and from August 2000 to March 2001. This matter comes before the Board of Veterans' Appeals on appeal from a June 2016 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021. A transcript is of record. Service Connection Service connection will be granted if the evidence demonstrates a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be granted on a secondary basis for a disability which is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained, "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. In relevant part, 38 U.S.C. § 1154(a) requires VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection for a major depressive disorder is granted. In various statements provided throughout his appeal, including sworn testimony provided at his June 2021 Board hearing, the Veteran asserts he has an acquired psychiatric disorder related to stressors he experienced during active service. Specifically, the Veteran states due to racial harassment and sustaining in-service injuries, which prematurely ended his military career, he maintains he developed a psychiatric condition during active service that has continued to persist to the present. See June 2021 Board Hearing Transcript. Furthermore, the Veteran contends he has a psychiatric condition that is secondary to his service-connected conditions. Id. Here, all three elements to establish service connection have been satisfied. See 38 C.F.R. §§ 3.303 (a), Shedden, supra. First, as concerning the requisite current diagnosis, the record reflects a current psychiatric pathology, including a diagnosis of a recurrent, severe major depressive disorder, which was noted in March 2019 by a Dr. K., a national board-certified counselor, licensed clinical mental health counselor, and certified clinical trauma professional. The Veteran's CAPRI records also reflect he has received treatment for a psychiatric condition. Second, the record shows the Veteran experienced injuries during active service that prematurely ended his military career. The Board notes a November 2000 Statement of Medical Examination and Duty Status documents the Veteran developed a hernia during basic training and was sent home on convalescent leave. Military personnel records from March 2001 show the Veteran was removed from active-duty training to recover from his surgery, and it was recommended he be released to start transition processing for return to his Army National Guard unit. Thus, the Veteran's military record supports his lay assertions that he suffered physical injuries during active service. At his June 2021 Board hearing, the Veteran testified his psychiatric problems began during active service. Specifically, the Veteran recalls he was older than some of the other recruits, and when he would injure himself, he was not allowed to go to sick call. He further recalled he did not know whether he would make it out of active service without going to prison. He testified he was not offered any psychiatric treatment during active service. He stated he was recycled after he snapped. The Veteran recalled that after active service, he was felt destroyed and anger, and he went into psychiatric counseling and started to self-medicate with drugs. The Veteran has provided statements consistent with his June 2021 testimony. For example, his CAPRI records show he provided statements during treatment that are consistent with his testimony. See February 2016 Psychiatric Evaluation (documenting the Veteran commented he felt a great sense of loss based upon not being able to have a military career). Thus, in addition to the Veteran's military record supporting his lay assertions that he suffered physical injuries during active service, the medical record and lay statements elsewhere reflect consistent statements, particularly given during treatment, that support the Veteran developed psychiatric symptoms as a result of having to prematurely end his military career due to in-service injuries. Finally, as to the third element, that of a nexus between the Veteran's psychiatric disability and the in-service stressor, VA received three positive nexus opinions. The first positive nexus opinion is dated from July 2016 and was prepared by a licensed professional counselor. The examiner states the Veteran's depression began after his in-service injuries and his eventual discharge, which led to a cycle of depressive episodes that included isolative behaviors, sadness, and crying spells. Since he could no longer have a military career, psychiatric symptoms triggered episodes of a major depressive disorder. Another positive nexus opinion is from April 2017. It was prepared by the same licensed professional counselor who prepared the July 2016 opinion. They state it is more likely than not the Veteran's depression, the predominate part of his mood disorder, began when he incurred injuries during his military career. For their rationale, they note the Veteran's presentation, treatment history, clinical evaluation, psychiatric evaluation, and ongoing treatment over the years show it is more likely than not the Veteran's injuries triggered the onset of his depression. They further find the Veteran's continuous injuries during active service and his subsequent discharge for being unable to perform his duties led to a cycle of depressive episodes, which included isolative behaviors, sadness, and crying spells. The found that not being able to fully realize a full career in the military triggered psychiatric symptoms that resulted in the Veteran's current psychiatric condition. Furthermore, the opinion states the Veteran's difficulty coping with his long-term injuries, such as hernia surgery, leg and knee injuries, in addition to back injuries, and tinnitus contribute to the Veteran's depressive episodes, which inhibit his functioning in all domains including normal social engagement. They also contribute to inappropriate anger and unprovoked irritability. In March 2019, the Veteran's counselor found it is as likely as not the Veteran's symptoms and diagnosis of a major depressive disorder are secondary to his tinnitus and hernia conditions. The Veteran's counselor attributes the Veteran's psychiatric condition to his medical conditions and subsequent discharge from active service and his hernia surgery. See also March 2019 VA Examination Report. Given there is no negative opinion of record to weigh against the positive nexus opinions, the VA treatment notes documenting continued psychiatric treatment, the Veteran's military records which document his hernia surgery and subsequent release from active duty, the positive nexus opinions of record, and the credible statements of the Veteran regarding continuing symptoms since his separation from service, the Board finds service connection for a major depressive disorder is warranted. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.