Citation Nr: 21025178 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-38 246 DATE: April 27, 2021 ORDER Service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. Some of the Veteran’s service treatment records (STRs) dated from 2007 to 2010 may be missing and unavailable. 2. The onset of the Veteran’s current major depressive disorder with anxiety was during active service in the U.S. Army from 2007 to 2010. CONCLUSION OF LAW The criteria have been met for service connection for an acquired psychiatric disorder on a direct basis. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2007 to May 2010 in the U.S. Army. This included active duty service in Iraq from March 2008 to June 2009 as part of Operation Enduring Freedom. Subsequently, from 2010 to 2015, the Veteran served with the Minnesota Army National Guard and the U.S. Army Reserve. This National Guard and Army Reserve service included various periods of active duty for training (ACDUTRA) and inactive duty for training (INADUTRA) from 2010 to 2015. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In April 2019, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service — the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the 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, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). The Veteran dates the onset of his current depression to his active service in the U.S. Army from 2007 to 2010. He says his mental health problems began in 2007 and 2008 during service and became more noticeable after he returned home from Iraq in June 2009. The Veteran reports meeting with an Army chaplain (who was also an Army Captain) during active duty for several counseling sessions due to his depressive symptoms and difficulty adjusting to life in the Army. He began receiving formal mental health treatment for his depression with psychiatric medication post-service while in the National Guard and Army Reserve in 2014. See October 2019 VA Form 9; March 2019 Informal Hearing Presentation (IHP) from the American Legion. Upon review of the evidence, the Board grants the appeal for major depressive disorder with anxiety. The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Here, the December 2019 VA psychological examiner diagnosed the Veteran with major depressive disorder, recurrent, moderate, with anxious distress. In addition, VA clinicians in VA mental health treatment records dated from 2014 to 2019 have rendered similar psychiatric diagnoses - unspecified depressive disorder and anxiety. The Veteran has been treated for his depression with sertraline and psychotherapy sessions. Thus, it is undisputed the Veteran has a current psychiatric disorder. The remaining question is whether his current psychiatric disorder first manifested during active duty from 2007 to 2010 or is otherwise related to this period of active duty. As to the second requirement of in-service incurrence, the Veteran’s STRs are silent as to any complaints, treatment, or diagnosis of a psychiatric disorder. However, of greater significance here are the lay statements and reports provided by the Veteran to VA medical providers describing his counseling sessions with an Army chaplain (an Army Captain) during active duty due to his depressive symptoms and difficulty adjusting to life in the Army. See September 2014 VA mental health note; December 2019 VA psychological examination. (The Veteran’s representative pointed out that these counseling visits to an Army chaplain would not be associated with the Veteran’s STRs. See March 2019 IHP from the American Legion). In addition, the Board sees that a March 2010 service personnel record (SPR) “enlisted record brief” documented that the Veteran underwent a final STR physical examination in January 2010. But this particular STR is also not present in the claims file. In any event, the mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran is competent to report his psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). Additionally, in the present case, the Board finds the Veteran’s lay reports of in-service symptoms of depression and counseling sessions with an Army chaplain in 2007 and 2008 to be credible. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). He made these lay assertions to VA medical providers who were treating him for his depression post-service. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991). There is no overt reason for the Veteran to lie about receiving counseling from an Army chaplain for mental health issues while on active duty. Moreover, these lay reports asserting depressive symptomatology and counseling sessions during active duty are supported a later medical opinion by a medical professional, as will be explained further below. See Jandreau, 492 F.3d at 1376-77. Thus, the third Jandreau category for a competent lay assertion supported by latter medical evidence is applicable in this case. In making this credibility determination regarding the Veteran’s in-service mental health symptoms, the Board is cognizant that when any STRs are lost or destroyed, the law imposes a heightened duty for the Board to explain its findings, including its consideration of the benefit of the doubt, and to assist the claimant in the development of the claim. See Washington v. Nicholson, 19 Vet. App. 362, 371 (2005); see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (holding that the CAVC’s caselaw establishes a “heightened duty” to assist when the appellant’s medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (holding that the Board’s duty to assist a claimant in developing a claim is heightened in cases in which the appellant’s STRs are lost or destroyed). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005). Post-service, as to the third requirement of a nexus, most importantly, there is probative medical evidence of a nexus or link between the Veteran’s current depressive disorder and his alleged in-service symptomatology and counseling sessions. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Specifically, the December 2019 VA psychologist reviewed and addressed the lay and clinical evidence in the claims file and performed a clinical interview with the Veteran. After a thorough discussion and analysis of the evidence of record, the December 2019 VA psychologist concluded the Veteran had “major depressive disorder, recurrent, moderate, with anxious distress.” The Veteran met the DSM-5 criteria for this condition. The VA examiner reflected that the Veteran talked to an Army chaplain a few times while on active duty. The Veteran’s depressive symptoms began and have continued after his deployment to Iraq (deployment ended in June 2009). The Veteran has continued to receive mental health care for depression at the VA in 2014 and 2015 while serving in the National Guard and thereafter. The VA psychologist opined that the Veteran’s current major depression is at least as likely as not (50 percent or greater probability) incurred in or caused by his military service. This December 2019 VA mental health examination and opinion was thorough, supported by an explanation, based on a review of the claims folder, and circumstantially supported by several of the Veteran’s post-service medical records. Notably, there is no contrary, unfavorable medical opinion of record. Even though the first clinical evidence of treatment for depressive symptoms in the claims file was in 2014, four years after separation from active duty, VA mental health treatment notes and evaluations dated in October 2014 and August 2016 described the Veteran’s depressive symptoms as “longstanding” and “long term.” He experiences “episodic depressive episodes.” See July 2016 VA psychiatry E&M note. In this regard, the Board is aware of the Court’s decision in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case which, similar to the present case, concerned a disorder that fluctuated in its degree of disability, that is, a disorder which had “active and inactive stages” or was subject to remission and recurrence. Therefore, although the Veteran’s depressive disorder has been described as a problem for the Veteran that can occur and reoccur in an “episodic” fashion over the years, it can still be subject to service connection. And although there is some mention in VA treatment records that depressive symptoms may have existed in the Veteran’s childhood prior to service, these VA treatment records alone would not constitute clear and unmistakable evidence of a preexisting depressive disorder. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Further, no psychiatric condition was noted or seen at his STR entrance examination. Accordingly, resolving doubt in the Veteran’s favor, the evidence supports service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with anxiety. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is granted. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.