Citation Nr: 21023586 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-09 576 DATE: April 21, 2021 ORDER Entitlement to service connection for depression not otherwise specified (NOS) and mood disorder is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s depression NOD and mood disorder had their onset in service. CONCLUSION OF LAW The criteria for service connection for depression NOS and mood disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from September 1972 to June 1974. At the outset, the procedural history of this case reflects an unappealed February 2013 rating decision and a timely appealed October 2014 rating decision. However, the Veteran filed in August 2013 a letter titled “Notice of Disagreement, My Appeal.” As August 2013 falls before the date VA amended its regulations to require claims be filed on a standardized form and VA construes notices of disagreement liberally, Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement”) (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)), the Board finds this was a timely notice of disagreement (NOD), thus making the February 2013 rating decision the decision on appeal. See Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final). Therefore, this matter comes to the Board from a February 2013 rating decision in which the Regional Office (RO) denied service connection for depression. The Veteran filed a timely NOD in August 2013. A statement of the case (SOC) was issued to the Veteran in August 2018 and, later in August 2018, the Veteran filed a timely substantive appeal to the Board (via VA Form 9). The Veteran was afforded a videoconference hearing in April 2021. Although a transcript of the hearings has not yet been associated with the claims file, one is not necessary, as the benefit sought is being granted in full. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his current psychiatric disorder is a result of an assault he suffered in service by a fellow serviceman. The evidence of record shows an Axis I diagnosis of depression NOS in a November 2012 VA examination. The Veteran was diagnosed again with mood disorder in a May 2014 VA examination report. He has thus met the current disability element. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (a valid DSM-5 diagnosis is required to warrant compensation for a psychiatric disability). Regarding the in-service element, the Veteran stated that while he was returning from the bathroom on an authorized break, an intoxicated petty officer approached him, called the Veteran racial slurs, grabbed the Veteran’s nightstick from his bunk and attacked the Veteran. The petty officer was a foot taller and 100 pounders heavier than the Veteran. After he and other shipmates were able to subdue the attacking petty officer, the Veteran returned to his post and reported the incident to his superiors. Ultimately, the Veteran’s recitation of events was challenged by his superiors and he was escorted to sick bay and blamed for the attack. This, the Veteran testified at his April 2021 Board hearing, set in motion a chain of events that resulted in his current depression and substance abuse that continue to this day. Throughout the record, the Veteran repeatedly described the events of this attack with remarkable detail and consistency over the years. As a result, this satisfies the in-service disease or injury element of service connection. Turning to nexus, the November 2012 and May 2014 VA examiners provided similar negative medical opinions, relating the Veteran’s depression to his dissatisfaction with life circumstances and substance abuse. To that end, the May 2014 VA examiner went a step further and specified the Veteran’s diagnosis as “substance induced mood disorder.” He concluded that given the overabundance of other stressors and psychological problems, it is less likely than not that his depression is due to service. However, the VA examiner seemed to arbitrarily attribute the Veteran’s depression more to his substance abuse than to events in service and indicated difficulty with diagnosing the Veteran due to lack of sustained sobriety, despite noting that manic depressive disorder was suspected in service. Taken together, this medical opinion, in addition to the November 2012 medical opinion which attributed his depression to his financial issues and dissatisfaction with current life circumstances, are afforded limited probative weight. The Veteran’s service treatment records are consistent with his testimony. The May 1974 separation examination report and associated narrative summary contain a description of an assault similar to that described by the Veteran and declined to diagnose a psychiatric disorder, although paranoid personality features were noted. The absence of a diagnosis in service is not, however, fatal to the Veteran’s claim. 38 C.F.R. § 3.303(d) (allowing for service connection for a disease first diagnosed after service if the evidence reflects that the disease was incurred in service). The Veteran reported in a May 2011 letter that he has struggled to live a normal life since being discharged from service, experiencing extreme behavioral swings that were unbearable. In addition, during his April 2021 Board hearing, the Veteran’s daughter testified that she observed her father’s psychiatric symptoms, such as impaired impulse control, throughout her over 40 years, although also noting that he struggled to overcome his psychiatric symptoms and was a good father. In sum, the evidence of record reflects two negative medical opinions concluding that the Veteran’s depression was more likely than not due to current financial stress, dissatisfaction with life, and/or substance abuse. Alternatively, the lay evidence and the Veteran’s service records indicate a sound admission and a premature discharge from service due to the development of paranoid personality features following his assault. While the Board could remand the case again for yet another opinion, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is sufficient to decide the claim, as it is at least evenly balanced as to whether the Veteran’s depression NOS and mood disorder had their onset in service and continued to this day. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for depression NOS and mood disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.