Citation Nr: 21007446 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-14 493A DATE: February 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and major depressive disorder, is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disorder, to include anxiety and major depressive disorder began during active service. 2. The September 2015 rating decision granted service connection for posttraumatic stress disorder effective May 20, 2015. A 30 percent disability rating was assigned due, in part, to the Veteran’s anxiety and major depressive disorder, noted to be subsumed by his later identified posttraumatic stress disorder diagnosis. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include anxiety and major depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1990 until his honorable discharge in June 2010. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In March 2020, the Board remanded the issue of entitlement to service connection for major depressive disorder to the Agency of Original Jurisdiction (AOJ) for VA examination and opinion, along with the issue of entitlement to service connection for sleep apnea. A September 2020 rating decision granted service connection for obstructive sleep apnea effective January 10, 2013; thus, this issue is no longer on appeal. The issue of entitlement to service connection for acquired psychiatric disorder, to include anxiety and major depressive disorder is once again before the Board. The Board finds there has been substantial compliance with the March 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). A claim for service connection for a mental disability may encompass claims for any psychiatric disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary of VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran’s claim for service connection pursuant to Clemons and re-characterized as shown on the cover page of this decision. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In this case, an acquired psychiatric disorder, is not a “chronic disease” listed under 38 C.F.R. § 3.309(a) therefore the presumptive service connection provision based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and major depressive disorder. The Veteran contends his anxiety and depression had its onset during military service, and he has continuously experienced relevant symptoms since service separation. See September 2011 VA Form 21-526. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with an acquired psychiatric disorder, diagnosed as anxiety and major depressive disorder. See August 2012 VA examination report. Turning to the second element of service connection, an in-service incurrence, the Board finds this element is also met. The Veteran’s service treatment records (STRs) show complaints of psychiatric disorders. A March 2008 STR shows the Veteran presented to the mental health clinic after returning from deployment. A psychological evaluation was completed and revealed multiple moderate stressors and several moderate anxious/depressive symptoms. The physician diagnosed adjustment disorder with anxiety and depressed mood. On the January 2009, Report of Medical Examination: Retention Examination, the Veteran noted mild depression. A January 2020 STR record documents a history of depression reaction from deployment (not really PTSD). A February 2010 STR, military services physical for retirement, shows complaints of adjustment disorder with anxiety and prolonged depressed mood, and prescribed medications including Sertraline HCL. Accordingly, the Board finds the second element of service connection has also been met. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of an acquired psychiatric disorder in service and since service separation. Regarding the Veteran’s assertions he has experienced psychiatric symptoms in service and following service separation, the Board finds the Veteran competent and credible to report the onset of symptoms of this disability, including depression and anxiety. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of this disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran was afforded a VA Mental Disorders examination in August 2012. The VA examiner diagnosed anxiety and major depressive disorder. Because the August 2012 examiner did not have access to the Veteran’s claims file, an addendum was provided in December 2012. The December 2012 examiner noted, on the January 2010 report of medical history, the Veteran endorsed frequent trouble sleeping, receiving counseling, and depression or excessive worry. The examiner further noted a narrative description on the January 2010 [Form] DD2807 indicates “history of depression mild” and “not really ‘PTSD”. In offering a conclusion, the examiner stated the Veteran’s records contain no mental health treatment notes or indications he was prescribed medications for mental illness; the Veteran’s discharge paperwork contains his self-report of symptoms. The examiner opined, based upon the information provided, the Veteran’s anxiety and mood disturbance was less likely as not caused by or a result of military service. Pursuant to the Board’s March 2020 remand, a VA examination was conducted in August 2017. The examiner noted the Veteran was diagnosed with major depressive disorder and anxiety NOS on his previous August 2012 exam. The examiner stated the Veteran’s records note he was first diagnosed with anxiety after his deployment and was prescribed anti-depressants. The examiner stated it seems likely he was experiencing initial symptoms of PTSD at that time and those symptoms continue to bother the Veteran at this time. The examiner stated it appears the Veteran’s previously diagnosed depressive and anxiety related conditions were incorrect and his mental health symptoms in the past would have been more accurately diagnosed as PTSD and his symptoms would have been subsumed under that single diagnosis. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). After review, and resolving any reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s acquired psychiatric disorder is related to his active service. 38 C.F.R. § 3.102. Although the December 2012 examiner found the Veteran’s anxiety and major depressive disorder unrelated to service, the Board finds this opinion to be of diminished probative value. The December 2012 examiner failed to consider the competent and credible evidence of the Veteran’s reports of the onset of his acquired psychiatric disability symptoms in service, and the continuation of those symptoms since service separation. In addition, the examiner’s conclusion was based on an inaccurate factual basis; specifically, the VA examiner’s finding that the Veteran’s records contain no mental health treatment notes or indications he was prescribed medications for mental illness. As to the issue of nexus, the Board finds the Veteran’s statements regarding his in-service incurrence and resulting acquired psychiatric disability symptoms since service separation to be probative. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his acquired psychiatric disorder and finds he has done so. The Veteran’s statements are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. at 469-70. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. The Boards notes symptoms of an acquired psychiatric disorder, to include anxiety and depression, are capable of lay observation. The evidence reflects the Veteran experienced acquired psychiatric disorder symptoms in service and there have been continuous symptoms since service separation. The Veteran has been diagnosed as having an acquired psychiatric disorder. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Therefore, entitlement to service connection for an acquired psychiatric disorder, to include anxiety and major depressive disorder is warranted. The Board notes during the pendency of his appeal, the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD). See May 2015 VA Form 526EZ. In September 2015, VA assigned the Veteran a 30 percent disability rating for PTSD, due, in part, to his anxiety and depressed mood. The RO assigned an effective date of May 20, 2015, for the Veteran’s psychiatric disability. See September 2015 Rating Decision. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6. Vet. App. 259, 262 (1994). The Court of Appeals for Veterans Claims held that where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular Diagnostic Code, evaluation of that manifestation under another Diagnostic Code would not constitute pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2007); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Further, a manifestation of a disability has not been compensated by an assigned evaluation if the manifestation is “distinct and separate” from the manifestations that form a basis of the assigned evaluation. See Lyles, 29 Vet. App. at 118. These two exceptions are not applicable here. As noted above, the March 2020 VES examiner diagnosed PTSD. The examiner found the Veteran did not meet the criteria for another mental diagnosis aside from PTSD during his current evaluation. The examiner stated the Veteran’s claimed anxiety and depressive symptoms are subsumed by his current PTSD diagnosis and do not warrant separate diagnosis at this time. Given that the present claim goes back to the Veteran’s September 2011 claim for service connection for a psychiatric disorder, the grant of service connection herein addresses the claim for benefits for a psychiatric disability prior to the May 20, 2015, effective date for service connection for the Veteran’s later diagnosed PTSD. Thus, the Board finds entitlement to service connection for an acquired psychiatric disorder, to include anxiety and major depressive disorder, is warranted; the Veteran’s service connected acquired psychiatric disorder progressed to the service-connected PTSD, manifested with symptoms of anxiety and depressed mood, effective May 20, 2015. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.