Citation Nr: 21027744 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-53 384 DATE: May 6, 2021 ORDER Entitlement to service connection for persistent depressive disorder, to include as secondary to the service-connected traumatic brain injury (TBI), is denied. FINDING OF FACT The Veteran's persistent depressive disorder was not caused or aggravated by a disease or injury in service or a service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for persistent depressive disorder, to include as secondary to the service-connected TBI disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to August 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction is currently with the RO in St. Petersburg, Florida. In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In December 2019, the Board remanded this matter for further development. Entitlement to service connection for persistent depressive disorder, to include as secondary to the service-connected TBI, is denied. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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 of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran has been diagnosed with persistent depressive disorder. See March 2020 VA Examination Report. The Board acknowledges that the Veteran attributes his depressive disorder to his service-connected TBI, which resulted from an in-service motor vehicle accident and his participation in boxing matches while on active duty. See August 2019 Hearing Testimony p. 5-7. The Veteran has not contended that his depressive disorder is directly related to his military service. Furthermore, no diagnosis of a depressive disorder was rendered in service, and there are no probative medical opinions in favor of the claim. The Board notes that the Veteran submitted a private medical opinion letter in April 2015, in which Dr. K.D. attributed his depression to military service. However, no rationale was provided in support of this opinion, nor was the condition linked to the service-connected TBI. As such, it is afforded little probative value. In March 2020, the Veteran was afforded a VA psychological examination. The examiner diagnosed him with persistent depressive disorder. The VA examiner opined that the depressive disorder was less likely than not caused by military service. She based this opinion on the absence of psychological symptoms during active duty, as well as the Veteran's own reports regarding the onset of his condition in 2012. More importantly, the March 2020 VA examiner concluded that the depressive disorder was not proximately due to the service-connected TBI. Instead, she attributed the Veteran's depression to his nonservice-connected brain tumor, the subsequent surgery, and resulting seizures. She explained that the depressive disorder began in response to the compounding difficulties brought on by the brain tumor and its associated symptoms. The examiner further noted that a baseline level of severity could not be established for the Veteran's depression, as there were no clinical measures performed to evaluate this condition during service. However, she determined that the persistent depressive disorder was not at least as likely as not aggravated by the service-connected TBI. The examiner again emphasized the relationship between the Veteran's depression and his nonservice-connected tumor. She reiterated that his psychological symptoms were not present until 2012, following the removal of his brain tumor in 2005 and in response to the residual neurological symptoms. The Board affords this opinion significant probative weight, based upon the examiner's thorough evaluation of the Veteran's medical history, as well as her detailed rationale. She further attributed the depressive disorder to the nonservice-connected brain tumor. Thus, it is the only probative opinion of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board appreciates that the Veteran believes that his current disability is related to his service-connected TBI, and that he is competent to report his personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords these lay opinions no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, determining whether a depressive disorder is due to a neurological condition, such as a TBI, falls outside the realm of common knowledge of a lay person. See Jandreau, supra. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Because the Veteran's lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran's assertion that his depression was caused by his service-connected TBI or any in-service event. (Continued on the next page) Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and service connection for persistent depressive disorder, on a direct and secondary basis, is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.