Citation Nr: 21015614 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-42 485A DATE: March 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. FINDING OF FACT An acquired psychiatric disorder had its’ onset on active duty. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1993 to April 1996. In March 2019, the Veteran testified at a video hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Given the March 2019 personal hearing testimony, the Board of Veterans’ Appeal (Board) has recharacterized the Veteran’s claims of service connection to include any acquired psychiatric disorder seen in the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In October 2019, the Board issued a decision that denied the Veteran’s claim of service connection for an acquired psychiatric disorder. The Veteran appeal the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the October 2019 Board decision that denied the Veteran’s claim of service connection for an acquired psychiatric disorder. Lastly, the Board notes that additional VA treatment were added to the claims file since the RO issued the December 2015 statement of the case. However, the Board finds that it may adjudicate these claims without first obtaining a waiver of agency of original jurisdiction (AOJ) review of these records or remanding for AOJ review because the Veteran will not be prejudiced by this adjudication because the below decision is grating the claim for service connection. The Service Connection Claim The Veteran claims, among other things, that her current acquired psychiatric disorders are due to military service because she was diagnosed with depression while on active duty and had had observable problems with depression since that time. 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, in order 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). 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). As to current disabilities, the record shows the Veteran’s acquired psychiatric disorder being diagnosed as, among other things, depression. See, e.g., VA treatment records dated in February 2013. Next, the Board notes that the Veteran’s service medical records shows’ her being diagnosed with depression. See, e.g., separation examination dated in March 1996 (i.e., after the Veteran reported a history of depression the examiner noted that she had been seen at the Navy Family Service Center for depression). Given this record, the Board concludes that she had a disease or injury (i.e., an acquired psychiatric disorder diagnosed as depression) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Moreover, the Board finds that the Veteran is both competent and credible to report/testify on observable symptoms of her depression. See Davidson, supra. Given this record and granting the Veteran the benefit of any doubt in this matter, the Board finds that the question of whether her current depression is the same depression that she was first diagnosed while on active duty and had continued since service is in equipoise. With affording her the benefit of the doubt in this matter, the Board concludes that it did. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Davidson, supra; Owens, supra; Gilbert, supra. In reaching the above conclusion, the Board has not overlooked the October 2014 VA examiner’s opinion that the Veteran’s depression was not due to her military service. However, the Board finds that this examiner’s opinion lacks some probative value because, while service treatment records documented a diagnosis of depression, the examiner’s opinions was based on the mistaken belief that “STRs do not indicate in-service injury, event, or illness that contributed to her depression.” See Madden v. Gober, 125 F.3d. 1477, 481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board also finds that VA examiner’s opinion lacks probative value because the examiner did not appear to consider the Veteran’s competent and credible claims of having observable symptoms of an acquired psychiatric disorder diagnosed as depression in and since service. See Davidson, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s acquired psychiatric disorder had continued since service and service connection is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.