Citation Nr: 21025227 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-41 165 DATE: April 27, 2021 ORDER Entitlement to service connection for unspecified depressive disorder (depression) is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran’s depression is related to service. 2. There is no credible evidence supporting that the Veteran’s claimed in-service stressors occurred. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depression are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102; 3.303. 2. The criteria for entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1973 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision from a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2013, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the appeal in September 2014 and May 2018 for further development. The Board has recharacterized the claims on appeal as reflected herein. The issue on appeal was developed as a claim for service connection for PTSD; however, in light of the multiple psychiatric diagnoses of record, the Board has expanded the claim, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Moreover, the Board will address the merits of the claims for depression and PTSD separately, as a favorable outcome is warranted solely on the depression claim. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). Of note, in September 2020, the Board erroneously sent the Veteran a letter advising him that if we did not hear from him, his appeal would remain in the Travel Board hearing queue. However, the Veteran previously elected a Board hearing and provided testimony before the undersigned Veterans Law Judge in November 2013. Thus, his appeal was not in the Travel Board hearing queue, and the September 2020 letter was issued in error. The Board sent a letter to the Veteran notifying him of the error and that he was entitled to another Board hearing, but if the Board did not hear from him within 30 days of the notice, the Board would assume he did not want an additional hearing and proceed accordingly. It has been over 30 days since the Veteran was sent the letter and no response has been received from him or his representative. As such, the Board will proceed with the adjudication of the claim based on the evidence of record. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders. 38 C.F.R. § 4.125. Stressors may be established based on the Veteran’s lay testimony alone if he engaged in combat with the enemy or experienced or if the stressor is related to fear of hostile military or terrorist activity. 38 C.F.R. §§ 3.304(f)(2), (f)(3). 1. Entitlement to service connection for depression is granted. The Veteran asserts that his depression started in service. See July 2013 Board Hearing Transcript. The Board agrees. Here, the Veteran has a current diagnosis of depression. See February 2018 VA examination; September 2019 VA examination. Thus, element one of service connection is met. As for the second element, in-service incurrence of an injury or disease, the Veteran testified he experienced two stressors in service that resulted in an onset of depression. See July 2013 Board Hearing Transcript at 11. He reports that as a result of his symptoms, he was given less stressful duties. Id. The Veteran’s service personnel records (SPRs) indicate that he initially had the military occupational specialty (MOS) as an infantryman, but then his MOS later changed to a heavy vehicle driver, supporting his assertion that his duties were changed in conjunction with his in-service depression. In affording the Veteran the benefit of the doubt, particularly when considering the favorable nexus evidence cited below, element two is established. Regarding the final element, nexus, the February 2018 VA examiner attributed the Veteran’s feelings of depression to “trauma and ‘life in general’” in the mental health history section of the examination report; however, the examiner did not specifically provide a nexus statement. As a result, an addendum opinion was requested and received in September 2019. The September 2019 VA examiner reasoned that as the prior examiner related depression to trauma and life in general, his military service would therefore be a source of his depression, and therefore it was at least as likely as not due to service. See September 2019 VA examination. As there are no competent nexus opinions to the contrary, element three is also met, and entitlement to service connection for depression is granted. 2. Entitlement to service connection for PTSD is denied. The Veteran relates his PTSD to two in-service stressors. First, the Veteran reports that in 1974 his platoon sergeant threw a grenade simulator and it did not go off, but when the sergeant went to check as to whether or not he pulled the pin, the grenade went off, badly injuring him, with burns all over the front of his body, such that the Veteran thought he was dead. See July 2013 Board Hearing Transcript at 11. Second, the Veteran states that in 1974 he sustained a head injury as a result of carrying a gun in a simulated real fire experience. See July 2017 VA 21-0820. He states he jumped over the fence while carrying his weapon and it struck his head causing him to fall unconscious. Id. He recalls being treated for 3-5 days. Id. He also states that he was injured in in a blast and suffered from immediate disorientation and a headache, noting he did not suffer from a flesh wound. Id. The Veteran does not assert, and the evidence does not reflect, stressors in conjunction with combat service or related to fear of hostile military or terrorist activity. Accordingly, 38 C.F.R. § 3.304(f)(2) and 38 C.F.R. § 3.304(f)(3) are not applicable, and credible supporting evidence of the Veteran’s stressors is required. Here, the Veteran has a current diagnosis of PTSD linked to his first reported stressor involving his platoon sergeant. See February 2018 VA examination. However, there is no credible supporting evidence that the claimed in-service stressor occurred. Significantly, in January 2018, the Joint Services Records and Research Center (JSRRC) issued a memorandum stating that it was not able to locate any records related to either of the Veteran’s reported stressors. See January 2018 JSRRC memorandum. The memorandum specifically indicated that JSRRC was unable to locate any records of the platoon sergeant or any other soldier injured due to a grenade incident, and had researched available casualty information. Id. The Veteran has not submitted any credible evidence that these stressors occurred, other than his lay statements. Accordingly, his claim of entitlement to service connection for PTSD fails on this basis alone. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.