Citation Nr: 21070905 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-46 927 DATE: November 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder with anxiety, is granted. REMANDED Entitlement to service connection for residuals of head injury, to include headaches (claimed as traumatic brain injury (TBI)), is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's current diagnoses of unspecified depressive disorder with anxiety are related to his service. CONCLUSION OF LAW Resolving all doubt in the favor of the Veteran, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder with anxiety, have 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 honorably on active duty from September 1999 to August 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In his September 2017 substantive appeal regarding the claims, the Veteran requested a videoconference Board hearing. In August 2021 correspondence, the Veteran withdrew his hearing request. Accordingly, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). 1. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder with anxiety, is granted. The Veteran contends that his current psychiatric disability is related to his active military service. Specifically, the Veteran asserts that his psychiatric symptoms began during service, shortly after his documented head injury. The Veteran contends that his psychiatric disability has persisted since that time. See e.g., September 2017 VA 21-4138 (statement in support of claim). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1101; 38 C.F.R. § 3.303(a). 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran has current diagnosis of a psychiatric disorder, including diagnoses of unspecified depressive disorder with associated anxiety. As such, the first element of service connection has been met. The Veteran's service treatment records (STRs) contain reports of stress, anxiety, and depression. Notably, the Veteran was admitted to an inpatient clinic on May 15, 2000 for suicidal ideation. At this time, he was diagnosed with adjustment disorder and depressed mood. A May 2000 personnel memorandum indicates that a psychiatric evaluator found that "the Veteran displays a history of chronic maladjustment with emotional and behavioral instability. He demonstrates deficiency in attitude and motivation for continued military service." As such, the second element of service connection has been met. Therefore, the question before the Board is whether the alleged incidents in service caused this current disability. A VA medical opinion addressing etiology of the Veteran's current unspecified depressive disorder was obtained in July 2015. The VA examiner opined that the Veteran's current psychiatric condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that "in service there was no diagnosis of depression, only his self-report on his exit exam. Then he has not had any psychiatric care since service. There is only his self-statement that he has been depressed since service and no supporting documentation to link his service situation to his current depressed state." The Veteran also submitted a private psychiatric evaluation in September 2017. The evaluation was completed by Dr. J. P., a licensed psychologist. Following a review of the Veteran's claims folder, Dr. J. P. confirmed the Veteran's diagnosis of unspecified depressive disorder. Regarding etiology, Dr. J. P. opined that "[g]iven the records showing an onset of mental health symptoms for [the Veteran] during service, and given the medical records indicating the severity and chronicity of the Veteran's psychological symptoms until the present, and given the lack of any indication that [the Veteran] had a mental health disorder prior to joining the military, the evidence in the record indicates that it is at least as likely as not that [the Veteran's] depression is the direct result of his service. His psychological difficulties have persisted until the present day, as evidenced by his statements as well as the medical evidence of record demonstrating continuity of symptomatology." Upon review of the evidence, the Board finds that the evidence of the record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disorder is warranted. In this case, the Veteran has consistently and credibly testified that he has experienced psychiatric symptoms beginning during and since his active military service. The Veteran is competent to provide lay testimony regarding psychiatric problems he experienced during and immediately following service. Notably, his STRs also corroborate the Veteran's argument that he was experiencing psychiatric distress during his military service. While the July 2015 VA examiner provided a negative nexus opinion regarding a link between the Veteran's current psychiatric disorder and service, the September 2017 private psychologist in her rationale clearly attributed the Veteran's acquired psychiatric disorder to his symptoms and time on active duty. Both opinions are supported by the record and entitled to probative value. Pursuant to the "benefit-of-the-doubt" rule, where 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 prevail upon the issue. 38 U.S.C. § 5107. Accordingly, the Board finds that service connection for an acquired psychiatric disorder is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 1. Entitlement to service connection for residuals of head injury, to include headaches (claimed as TBI), is remanded. The Veteran contends that his current headaches and migraine disability are a result of a head injury that occurred during his active-duty service. The record reflects that during service a metal panel from a truck fell on his head in April 2000. There was no loss of consciousness following the injury, but the Veteran reported that he began experiencing headaches two to five times a month, especially at nighttime. The medical evidence of record reflects that the Veteran still experiences many migraine headaches on a chronic and consistent basis. No VA medical opinion has been obtained that addresses whether the Veteran has a current headache disorder as a residual of his in-service head injury. A remand is needed to afford the Veteran with a new VA examination and opinion in conjunction with his claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any current headache disorder. The examiner must opine whether it is at least as likely as not related to the Veteran's in-service head injury from April 2000. The examiner is asked to provide the underlying reasons for all opinions expressed and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Note that the lack of documented treatment in service for a headache disorder, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.