Citation Nr: A21020148 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210106-130690 DATE: December 16, 2021 ORDER Service connection for an acquired psychiatric disorder is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his current acquired psychiatric disorder began during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1982 to October 1985, and from March 1986 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) from an October 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal and elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the October 2020 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the July 2021 Board hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board notes that a transcript of the July 2021 hearing before the undersigned is within the Veteran's claims file. In March 2021, the Veteran submitted a copy of a medical evaluation from his private practitioner related to his psychiatric disorder claim. He resubmitted this report in June 2021. This evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of entitlement to service connection for a psychiatric disorder, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. Moving to the merits of the claim, the Veteran contends that he has a current psychiatric disorder that initially manifested in service and has continued ever since. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury, or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the first element for establishing service connection, the presence of a current disability, has been clearly met. While the Veteran initially claimed service connection for PTSD and the September 2020 VA examiner found he did not meet the diagnostic criteria for that disorder, the examiner did confirm the diagnosis of depressive disorder. Thus, the Veteran has a current acquired psychiatric disorder. As for whether there was an in-service incurrence, the Veteran's service treatment records show several indications of the onset of depression and anxiety in service. In May 1986, the Veteran was seen and described as nervous and anxious and reported that he was not sleeping. He reported that he had been experiencing anxiety for two years. The clinician assessed him as having anxiety and adjustment reaction. In May 1995, the Veteran was seen for depression and anxiety and prescribed Paxil. He was placed on convalescent leave for three weeks in order for the medication to take effect. June 1995 records show the Paxil continued and the depression diagnosis was again noted. July 1995 records show he was under treatment and being transferred to Selfridge Air National Guard Base for treatment in its mental health clinic. An August 1995 record from the Employee Assistance Clinic at Selfridge Air National Guard Base shows he was confirmed as clinically depressed. The Veteran, therefore, had an in-service incurrence of depression. Post-service records, including a May 2020 statement from a private treatment facility, shows the Veteran continues to be treated for depressive disorder. At the June 2021 Board hearing, the Veteran confirmed that the did not experience depression of any sort prior to his active service. The Veteran confirmed that the depression that started in service continued when he got out of the Army and it continues today. Based upon the foregoing, the Board concludes that the Veteran has a current acquired psychiatric disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). While the Board recognizes there is a gap in documented treatment of this disability, the Veteran is competent to report the ongoing nature of his symptoms. Further, the medical evidence confirms that the current diagnosis is the same as the diagnosis shown in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.