Citation Nr: 21067941 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-50 544 DATE: November 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, major depressive disorder (MDD), is granted. Entitlement to service connection for post-traumatic stress disorder (PTSD) has been withdrawn. FINDINGS OF FACT 1. The Veteran has a present diagnosis of MDD. 2. Resolving reasonable doubt in the Veteran's favor, MDD is related to an in-service event. 3. In October 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for MDD are met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal have been met, and the appeal regarding the claim of entitlement to service connection for PTSD is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from March 1968 to February 1971 in the Army and from November 1976 to November 1980 in the Navy, with additional reserve service. The Board denied the claims for service connection for PTSD and an acquired psychiatric disorder other than PTSD, to include depressive disorder in November 2018. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's denial and remanded the matter to the Board. In May 2020, the Board remanded the claim for a new VA opinion consistent with the JMPR. The Veteran was afforded a new VA examination in October 2020. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. SERVICE CONNECTION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include depressive disorder is granted. The Board concludes that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of MDD that is etiologically related to active duty service. The Veteran contends that he had severe mental stress and trauma due to charges being brought against him in service of which he was eventually acquitted. He explained that he had an extended incarceration, he was separated from his family, and that he had financial difficulty. The Veteran was also forcefully moved by the Navy because it was unsafe to keep him on the same ship. The Veteran reported trouble sleeping, trouble eating, and reoccurring deep depression during service. See Form 9 received October 2016, VA 21-0781 received August 2012. The Board finds that the Veteran has a current disability. Both the VA examiner and private provider found that the Veteran had MDD. See C&P Exam received October 2020, Medical Treatment Record-Non-Government Facility received October 2021. Thus, the first element of service connection has been met. Also, the evidence as a whole supported an in-service event, injury, or disease. In particular, the records from service supported that the Veteran had a trial in service in 1979. Military Personnel records from July 1979 stated "[a]cquittal of charge notwithstanding, shipboard environment dictates permanent transfer of SNM in order to avoid confrontation, possibly with racial overtones, and ensure safety of the individual [.]" See Military Personnel Record received September 2013. Additionally, service treatment records from August 1979 reported the Veteran having acute anxiety over separation from family. See STR-Medical-Photocopy received May 2012. The records also reported the Veteran having trouble sleeping, being anxious, being tense, and lacking energy. Id. The Board finds that the Veteran's statements are credible, as they are consistent with the verified circumstances of his service. 38 U.S.C. § 1154(a). The Board accepts these statements as competent evidence establishing an in-service event, and, as such, the second element of in-service incurrence has been met. Lastly the Board finds that a link between the Veteran's present disability and the in-service event, injury, or disease is at least in equipoise. As for the opinions, in October 2020, a VA examiner opined that while the Veteran had MDD, that the examiner felt this condition was due to personal life stressors, including lung cancer, marital issues, and alcohol abuse. See C&P Examination received October 2020. The rationale stated that there was no direct casual link between the in-service stressor (1979 trial) and depression, because the Veteran denied any endorsement of mood or depressive symptoms on the medical examination reports conducted in 1984, while he was in the reserves. Id. However, the VA opinion did not discuss the Veteran's in-service symptoms of anxiety, trouble eating, trouble sleeping, and trouble with energy, notable around the time of the 1979 trial. The opinion also inadequately considered the Veteran's competent and credible lay statements that his symptoms had their onset in service. The Veteran obtained a private medical opinion. The private medical expert also diagnosed the Veteran with major depressive disorder, with mood congruent psychotic features, and with anxious distress. The doctor opined that the Veteran's MDD began while in active duty service. The private expert gave a long chronology of the evidence and provided a rationale for their opinion. Of note, the doctor explained that during service the Veteran developed depression, anxiety, and concomitant alcohol use disorder. The doctor felt that the Veteran used alcohol to mitigate his emotional disarray and chaos. See Medical Treatment Record-Non-Government Facility received October 2021. The Board noted that the private expert opinion considered both the evidence as a whole and the lay statements of the Veteran. The law is clear. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b). Resolving any reasonable doubt in favor of the Veteran, the Board finds that a link between the Veteran's MDD and in-service event has been established. Accordingly, the Veteran's claim for service connection for MDD is granted. WITHDRAWN CLAIM Entitlement to service connection for PTSD is withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn this appeal and, hence, there remains no allegations of errors of fact or law for appellate consideration. See Third Party Correspondence received October 2021. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.