Citation Nr: 21026040 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 20-03 650 DATE: April 29, 2021 ORDER Entitlement to service connection for depression is denied. FINDING OF FACT The preponderance of the is against a finding that the Veteran has a current diagnosis for depression. CONCLUSION OF LAW The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1963 to November 1968 and from February 1969 to April 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). The Board notes that the Veteran initially filed a January 2020 Form 9 declining an optional hearing before the Board. In a March 13, 2020, correspondence, the Veteran’s representative filed a hearing request that appeared to be related to the Veteran’s pending depression and PTSD appeals. The Veteran was granted service connection for PTSD in a June 2020 rating decision, but the related depression claim remained pending. Because the record was unclear as to whether the Veteran wanted a hearing for his depression claim, the Board sent a hearing clarification letter to the Veteran on February 22, 2021. This letter notified the Veteran that he had 30 days to respond, and if no response was received within 30 days, the Board would use the Veteran's initial selection to decline an optional hearing for his depression appeal. As of the date of this decision, the Veteran has not responded to the hearing clarification letter and the 30-day period has passed. As a preliminary matter, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran was granted entitlement to a total disability rating based on individual unemployability (TDIU), effective December 11, 2018. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of a diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for depression. The Veteran initially filed claims for entitlement to service connection for PTSD and depression. In a June 2020 rating decision, the Veteran was awarded service connection for PTSD, effective July 21, 2017. The depression claim remained pending and a supplemental statement of the case was issued in December 2020. It is important for the Veteran to understand that most psychiatric conditions are evaluated under the same criteria and the Veteran cannot get two separate evaluations for the same problem. In this case, PTSD and depression. The Veteran’s service treatment records are silent as to a diagnosis for, treatment for, or complaints of depression. The Veteran’s post-service treatment records contain do not show a diagnosis or treatment for a depressive disorder. The Veteran was provided depression screening on several occasions, all were negative. The Veteran was provided a VA examination for mental conditions in September 2011. The examiner found that the Veteran did not meet the criteria for a mental health diagnosis. The Veteran was provided a VA examination for mental conditions in June 2020. The examiner found that the Veteran meets DSM-5 criteria for a diagnosis of PTSD, mild in severity. The examiner noted that the Veteran has mild depressive symptoms that are part of his PTSD, but found that the Veteran does not meet the criteria for a separate diagnosis of a depressive disorder. Thus, the examiner found that it is less likely (less than 50% probability) that a diagnosis of secondary depression was incurred in or caused by the fear of hostile military and/or terrorist activity during service. As to OCD, the dispositive matter is whether the Veteran has a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied if the disability existed at the time a claim of filing of VA disability compensation or during the pendency of that claim, even if the disability resolved prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of a diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. Here, the June 2020 VA examiner found that the Veteran does not satisfy the criteria for a depressive disorder and that his depressive symptoms are attributable to his PTSD. The September 2011 VA examination did not find a diagnosis or symptoms of depression. Based on the above, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current diagnosis for depression. Therefore, the Board finds that service connection for depression is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent the Veteran’s statements are being offered to establish a current diagnosis for depression, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such opinions. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.