Citation Nr: 21074290 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 07-09 278 DATE: December 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder and generalized anxiety disorder, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's acquired psychiatric disorder, diagnosed as depressive disorder and generalized anxiety disorder, is related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder and generalized anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1988 to July 1992 with periods of active duty for training from July 1985 to October 1985, September 1993 to December 1993, and February 1994 to May 1994. He also had service in the National Guard of the State of Louisiana. The Veteran presented testimony on his claim for service connection for an acquired psychiatric disorder before an undersigned Veterans Law Judge (VLJ) in July 2008. In July 2015, the Veteran presented testimony on the same issue before another undersigned VLJ, and in August 2018, he again presented testimony regarding the issue on appeal before a third undersigned VLJ. A transcript of each hearing has been associated with the claims file. In January 2020, the Board issued a decision which denied service connection for an acquired psychiatric disorder and pneumonia with recurrent rashes, and remanded the issue of entitlement to service connection for chronic prostatitis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR) as to the issue of entitlement to service connection for an acquired psychiatric disorder only, vacating the Board's January 2020 decision as to that issue, and remanding the issue to the Board for additional consideration. The Board notes that, while the claim for entitlement to service connection for chronic prostatitis was pending at the Agency of Original Jurisdiction (AOJ), service connection for chronic prostatitis was granted in a January 2021 rating decision. This constitutes a full grant of the benefit sought with regard to the claim for entitlement to service connection for chronic prostatitis. Accordingly, this claim is no longer before the Board. Entitlement to service connection for an acquired psychiatric disorder Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After thorough consideration of the record, the Board finds that the evidence supports a grant of service connection for an acquired psychiatric disorder, diagnosed as a depressive disorder and generalized anxiety disorder. At the outset, the Board notes that the evidence of record does not support a diagnosis of posttraumatic stress disorder (PTSD). While the Veteran's medical records document findings of positive PTSD screenings, a diagnosis of PTSD is not shown in the record. During his June 2009 VA examination, the Veteran reported that he was diagnosed with PTSD in 2001 by a civilian doctor. During his August 2018 hearing before the Board, he stated that he was diagnosed with PTSD in 2000 or 2001 by a VA physician. Despite the Veteran's lay reports of a PTSD diagnosis, the medical evidence of record does not corroborate his statements and the Veteran is not competent to diagnose PTSD. Moreover, the June 2009 VA examiner concluded that the Veteran's presentation of symptoms was "not consistent with PTSD." The October 2010 VA examiner noted the Veteran's reports that he has been diagnosed with PTSD in the past as well as his reported history of combat stressors, but concluded that he could not get a good history from the Veteran to support that diagnosis. The February 2015 VA examiner stated that the Veteran was unable to clearly describe any events during military service meeting criterion A for PTSD. Additionally, VA treatment reports show in September 2006, a VA psychiatrist conducted a mental status examination and concluded that the Veteran did not meet the criteria for a diagnosis of PTSD. Accordingly, the weight of the probative evidence does not support a diagnosis of PTSD. However, there is evidence of a current disability diagnosed as depressive disorder and generalized anxiety disorder. A February 2015 VA examination report reflects a diagnosis of depressive disorder and a July 2021 private medical report from P.W., Ph.D., notes diagnoses of persistent depressive disorder and generalized anxiety disorder. Additionally, a June 2009 VA examiner found that, although the Veteran did not meet the full criteria for a diagnosis of major depressive disorder, his symptom presentation was consistent with a diagnosis of depressive disorder. Last, an October 2010 VA examination notes a diagnosis of depressive disorder. Although a March 2003 VA examiner concluded that the Veteran's symptoms did not meet the criteria for a diagnosis of an acquired psychiatric disorder at that time, resolving reasonable doubt in the Veteran's favor, the Board concludes that the evidence supports a diagnosis of depressive disorder and generalized anxiety disorder. Thus, a current disability has been shown. Second, there is evidence of an in-service event, disease, or injury, as the Veteran's service treatment records document complaints of depression and excessive worry. An October 1988 service treatment record reflects a diagnosis of adjustment disorder with mixed mood and conduct, noting that the Veteran had marital violence problems. A June 1992 report of medical history reflects that the Veteran reported a history of depression or excessive worry. He noted that he was diagnosed with clinical depression in September 1991 and was treated with medication. The clinical noted that the Veteran had an Axis I diagnosis of adjustment disorder with mixed mood secondary to marital difficulties. Accordingly, there is evidence of in-service psychiatric symptoms. Last, the weight of the probative evidence is at least in equipoise as to whether the Veteran's current acquired psychiatric disorder was incurred in or caused by his active duty service. In a July 2021 opinion, P.W., Ph.D., opined that it was at least as likely as not that the Veteran's depression and anxiety first manifested during his active duty service and have continued since that time. Dr. P.W. explained that the Veteran first manifested chronic anxiety and depression during service which continued throughout service and that the Veteran's "prolonged deviation from his normal method of behavior in and out of military service share a bond in causing problems with anxiety and depression, which was fueled by his feelings of negative treatment by his superiors." Dr. P.W. noted that his opinion was based upon a review of the Veteran's claims file, psychological examination, and the Veteran's lay statements. The Board acknowledges the June 2009, February 2015, and March 2015 negative VA nexus opinions. In that regard, a June 2009 VA examiner opined that it was less likely than not that the Veteran's depressive disorder was related to his active duty service. The examiner explained that, although the Veteran attributed his depressed mood to service, the Veteran was generally evasive when asked about specific experiences during service which continued to cause distress. The examiner noted that, without specific information and supporting documentation regarding distressing military experiences, it was unclear how the reported distress over military experiences was related to his current symptomatology. The examiner further noted that any distress related to the reported adjustment disorder due to marital difficulty claimed during service would have alleviated no longer than six months after the stressor ceased, and that the Veteran had been divorced for multiple years. The February 2015 VA examiner also opined that it was less likely than not that the Veteran's depression was related to his active duty service. The examiner noted the Veteran's reports that he was diagnosed with depression during active duty in 1989 and treated for depression during service, but that there was no evidence to support his statement. Additionally, the examiner noted that the Veteran responded "no" to a question about past mental health treatment on a questionnaire dated 1993. The examiner concluded that the Veteran's depression appeared to be related to multiple psychosocial stressors, including marital conflict. A March 2015 addendum opinion prepared by the February 2015 VA examiner further explained that, although the Veteran was diagnosed with adjustment disorder during service, adjustment disorder by definition resolves in six months and therefore cannot be the same issue today. The examiner acknowledged that the Veteran noted a history of depression in 1992, but remarked that this was identified as a past issue that occurred in 1991. The examiner concluded that, because there was no evidence that depression was a continuous problem for the Veteran from 1991 through 2015, it is less likely than not that the acquired psychiatric disorder is related to his active duty service. Although the June 2009, February 2015, and March 2015 VA opinions concluded that the Veteran's acquired psychiatric disorder is not related to his active duty service, in the March 2021 JMPR, the Secretary of VA and the Veteran (the parties) agreed that the opinions provided by the June 2009 and February 2015 VA examiners, including the March 2015 addendum opinion, were inadequate because both examiners failed to consider the in-service depressive symptoms and the Veteran's post-service lay reports of continuous psychiatric symptoms since service discharge. Because the JMPR found the June 2009 and February 2015 VA opinions to be inadequate, the Board does not afford them probative value. Given the current diagnoses of depression and anxiety, the in-service symptoms documented in the service treatment records, and the July 2021 private opinion linking the Veteran's current psychiatric disorder to his active duty service, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder had its onset during service and has continued since that time. Resolving reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder, diagnosed as depressive disorder and generalized anxiety disorder, is warranted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.