Citation Nr: A21020002 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200501-84765 DATE: December 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition, to include major depression, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's acquired psychiatric disorder, to include major depression, is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include major depression, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2001 to September 2004. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). As to supporting evidence that the claimed in-service stressor occurred, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304 (f)(3). A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1(2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Entitlement to service connection for an acquired psychiatric condition, to include major depression The Veteran has alleged that he suffers from an acquired psychiatric condition, to include PTSD and depression, that is etiologically related to service. At the outset, the record shows the Veteran being diagnosed with acquired psychiatric disorder, to include major depression. Records show that while his treatment records include a notation regarding PTSD, the Veteran does not meet the criteria for a PTSD diagnosis. The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of an acquired psychiatric condition. The Veteran submitted an April 2020 private medical opinion from psychologist J.H.P. After a review of the Veteran's treatment records, the psychologist found that the Veteran meets criteria for major depressive disorder. The examiner noted the Veteran experiences anxiety, depression, alcohol abuse, anhedonia, difficulty concentrating, suicidal ideation, nightmares, hypervigilance, detachment from others, disturbances in motivation or mood and difficulty in establishing and maintaining relationships. The provider noted that, during service, the Veteran's ship collided with an oil tanker and he was in fear of the ship sinking. Moreover, the Veteran reported that the ship's executive officer committed suicide while he was onboard, and the Veteran described significant grief in response to this loss. The psychologist noted that the Veteran's lack of treatment from his discharge until approximately 2018 is common as individuals suffering from significant psychological difficulties to either not be fully aware of their defects or to avoid seeking treatment due to fear of potential repercussions. The examiner opined that this was the case for the Veteran. After reviewing the evidence, the private psychologist opined that it was as likely as not that the Veteran's major depression is the result of his experiences during service. At an earlier July 2019 VA psychiatric examination, the examiner opined that the Veteran does not meet the criteria for a PTSD diagnosis but did diagnose the Veteran with major depressive disorder. Nevertheless, the examiner opined that it was less likely that not that the Veteran's depression was etiologically related to service. The examiner's sole rationale was the lack of treatment from his discharge in 2004 until approximately 2018. However, the lack of post-service treatment cannot by itself support a negative opinion with respect to a potential relationship between the Veteran's currently diagnosed depression and service. Although the passage of time without medical evidence of a disorder is a factor to be considered, it is not dispositive. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). The Board has reviewed the case in detail. The Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder is related to military service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, considering the totality of the evidence, the Board finds that service connection for an acquired psychiatric disorder, to include major depressive disorder is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.