Citation Nr: 21026742 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-32 566 DATE: May 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder, is granted. FINDING OF FACT The Veteran has been shown to have an acquired psychiatric disorder, diagnosed as unspecified depressive disorder, that is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for unspecified depressive disorder have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision. In November 2018, the Board remanded the claim for service connection for an acquired psychiatric disorder for the issuance of a Supplemental Statement of the Case (SSOC). In June 2020, the Agency of Original Jurisdiction (AOJ) issued an SSOC. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's representative submitted additional records following the June 2020 SSOC along with a waiver of initial consideration by the AOJ. See August 2020 correspondence. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has a current acquired psychiatric disorder that is related to in-service stressors. He also reported that his symptoms of emotional distress onset during service and have continued since that time. See February 2016 Private Disability Benefits Questionnaire (DBQ). Service connection may be granted for a 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) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for unspecified depressive disorder is warranted. Initially, the evidence shows that the Veteran has a current acquired psychiatric disorder. See, e.g., June 2012 VA mental health record (noting an Axis I diagnosis of mood disorder, not otherwise specified (NOS)); July 2014 private mental health record (noting a DSM-IV Axis I diagnosis of mood disorder, NOS); and February 2016 private disability benefits questionnaire (DBQ) (noting a diagnosis of unspecified depressive disorder). In August 2020, the Veteran's representative also submitted an updated copy of a February 2016 private DBQ that noted a DSM-5 diagnosis of unspecified depressive disorder. Therefore, the first element of service connection is satisfied. See Shedden, 381 F.3d at 1166-67. The Board acknowledges that the record suggests that the Veteran has also been diagnosed with personality disorder, NOS. See, e.g., February 2013 VA examination report. Personality disorders are not considered a disability for VA compensation purposes, and the Board is unable to consider it as a current disability. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, service connection may be awarded if the evidence shows that an acquired psychiatric disability was incurred or aggravated in service and superimposed upon a preexisting personality disorder. 38 C.F.R. §§ 4.9, 4.127. Moreover, in this case, the Veteran has been diagnosed with unspecified depressive disorder under the DSM-V, which satisfies the criteria for a current disability. With regard to an in-service incident, the Veteran contends that his current acquired psychiatric disorder is related to exposure to stressors during service. In July 2012, the Veteran reported witnessing body parts being transported aboard a ship in 1972 to 1973. See July 2012 VA Form 21-0781. He reported witnessing people being pulled through the intake of a jet engine and a terrorist attack that burned a TWA plane. The Veteran further reported that his duties involved retrieving bodies. Id. The Veteran's service personnel records reflect that he was assigned to the USS Independence in November 1973. His DD Form 214 also identifies the USS Independence as his last duty assignment. A history for the USS Independence (CV 62) noted that, in September 1974, sailors were introduced to the new concept of terrorism when a bomb exploded in the cargo compartment of a TWA flight high above. The sailors on the ship also spent two long days retrieving what little remained of the ill-fated jetliner, her crew, and passengers. The Veteran's service treatment records also include a January 1973 record that noted complaints of emotional problems. At that time, the Veteran reported that he was he was unduly harassed by others in his division. A military physician provided an impression of a situational anxiety reaction versus an immature personality. The Veteran was also prescribed Librium. Therefore, the second element of service-connection is met. See Shedden, 381 F.3d at 1166-67. With regard to nexus, in a February 2016 Disability Benefits Questionnaire (DBQ), a private psychologist, Dr. H.H. (initials used to protect privacy) diagnosed the Veteran with unspecified depressive disorder and unspecified personality disorder. Dr. H.H. opined that the Veteran's unspecified depressive disorder more likely than not began in military service and continued uninterrupted since that time. She further opined that the Veteran's unspecified depressive disorder was aggravated by his service-connected tinnitus. In support of her opinion, Dr. H.H. provided a description of the Veteran's mental health symptoms. She also reviewed relevant lay statements and medical records, including the Veteran's service treatment records and the February 2013 VA examination report. Although Dr. H.H.'s medical opinion was not accompanied by detailed rationale, the opinion addressed a central medical issue in this case and was based on current medical understanding. Therefore, the positive opinion is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion"); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). The Board does acknowledge that the record contains a negative VA medical opinion. In this regard, in a February 2013 VA examination report, the examiner determined that the Veteran did not have a current Axis I psychiatric diagnosis and did not meet the full criteria for a diagnosis of PTSD. Rather, the examiner diagnosed the Veteran with personality disorder, NOS. However, the examiner did not reconcile her opinion with the VA medical records that documented an Axis I diagnosis of mood disorder, NOS. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (finding that a VA examination, which the Board relied on, was inadequate where the examiner did not indicate, positive or negative, whether a recently diagnosed psychological disorder had resolved itself or was incorrectly diagnosed). Therefore, the opinion has very limited probative value. In addition, the Veteran reported having ongoing mental health symptoms since his separation from service. See February 2016 private DBQ. In support of his claim, the Veteran also submitted statements from his sisters regarding his mental health. In a January 2016 correspondence, the Veteran's sister, C.W., recounted that he was very depressed during his military service. She also stated that his symptoms of depression worsened after returning home from service. In a January 2016 correspondence, the Veteran's sister, S.T., stated that the Veteran became very introverted during his time in the military and was not the same person when he returned home from service. She also reported that his symptoms worsened over time. (Continued on the next page) The Veteran and his family are competent to report observable symptoms and events, including the onset of his mental health symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds no reason to doubt the credibility of these lay statements, and they provide further support for Dr. H.H.'s opinion. Based on the foregoing, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's unspecified depressive disorder is related to his military service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim for service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder, is granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.