Citation Nr: 21007587 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-08 998 DATE: February 10, 2021 ORDER Service connection for major depressive disorder is granted. REMANDED The issue of a rating greater than 30 percent for service-connected migraines is remanded. FINDING OF FACT The Veteran’s major depressive disorder began during active service. CONCLUSION OF LAW The criteria for service connection for major depressive disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 2002 to August 2008. These matters come before the Board of Veterans’ Appeals (Board) from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in June 2017 and a Statement of the Case (SOC) was issued in January 2018. The Veteran perfected an appeal by submitting a timely VA Form 9 in February 2018. The Veteran and his representative appeared in a December 2020 hearing. A transcript of that hearing has been associated with the record. At the hearing, the Veteran’s representative requested that the record be kept open for 30 days to allow the appellant to submit additional medical evidence. That 30-day period has expired. 38 C.F.R. § 20.605. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. Service connection for major depressive disorder The Veteran asserts that he is currently diagnosed as having a major depressive disorder that was caused by his active service. After weighing the evidence of record, the preponderance of the evidence supports a causal link between the Veteran’s service and his major depressive disorder. Service treatment records show that the Veteran did not report any psychological disorders, congenital or acquired, in August 2004. In October 2007, while in active service, the Veteran was diagnosed as having major depressive disorder. Following the diagnosis, in November 2007, the Veteran was found “not fit” for Nuclear Field Duty. In a July 2008 report of medical history, the Veteran stated that he was diagnosed with anxiety in 2007 that was confirmed by the examiner. The Veteran was afforded a VA examination for his acquired psychological disorder in April 2017. The examiner diagnosed the Veteran as having Asperger’s syndrome that was congenital and not aggravated by the Veteran’s service. The examiner did not discuss the Veteran’s service treatment records other than to comment that there was no exacerbation shown due to military service. The examiner did not discuss the diagnosis of major depressive disorder made during service. In December 2020, the Veteran credibly testified to corroborate the service treatment records. He also submitted a private medical opinion from June 2018 that diagnosed the Veteran as having a recurrent major depressive disorder that was in remission at the time of the examination. The private medical practitioner found no evidence of an autism spectrum disorder, including Asperger’s disorder. As the April 2017 VA examiner’s opinion does not discuss the Veteran’s diagnosis during service nor the incidents that ultimately led to the Veteran being found unfit for Nuclear Field Duty, it is based on incomplete factual basis and therefore inadequate. Even if adequate and probative, the Board assigns greater probative weight to the contemporaneous medical evidence of record that diagnosed the Veteran as having major depressive disorder during service. The Board also assigns greater probative weight to the June 2018 private medical opinion that discusses both the Veteran’s service treatment record and the diagnosis of Asperger’s syndrome by the April 2017 VA examiner. In sum, greater weight is given to medical opinions that diagnosed the Veteran as having major depressive disorder that began during his active service. For the foregoing reasons, service connection for major depressive disorder is granted. REASONS FOR REMAND The issue of a rating greater than 30 percent for service-connected migraines is remanded. In light of the Veteran’s testimony during the December 2020 hearing describing worsening symptoms of service-connected migraines occurring four times a month, the Board finds that the Veteran should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected migraines. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran’s last VA examination for his migraines was in May 2017. The matters are REMANDED for the following action: Schedule the Veteran for a new VA examination to assess the severity of his service-connected migraines. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.