Citation Nr: 21029470 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-23 676 DATE: May 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's depressive disorder is related to his active duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to July 1974 and August 1977 to February 1979. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in January 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for posttraumatic stress disorder (PTSD) and major depressive disorder. The Board will broaden the Veteran's claim and consider all psychiatric diagnoses raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In April 2019, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran appealed this decision to the Court. In January 2021, the Court set aside the Board's April 2019 decision, in part, and remanded to the Board the claim of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, for readjudication in compliance with directives specified in a January 2021 Joint Motion filed by counsel for the Veteran and VA. Specifically, the January 2021 Joint Motion indicated that remand was warranted for the Board to consider the explicitly raised theory of whether the Veteran's current psychiatric condition is related to an in-service motor vehicle accident and potential head injury and whether an examination was required to address this theory of nexus. Remand was therefore warranted for the Board to consider the explicitly raised theory and provide an adequate statement of reasons and bases for its decision. The Board has considered the explicitly raised theory and, as discussed further below, is granting the claim based on the evidence of record. Entitlement to service connection acquired psychiatric disorder, diagnosed as depressive disorder Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). During an April 2007 VA examination, the Veteran was found to not have PTSD as he did not indicate that he reexperienced a stressor, and the psychiatrist found that the Veteran's loss of consciousness from his vehicle accident was not a stressor as he was not aware of the event and could not remember the event. The psychiatrist opined that the Veteran's depression in the past was possibly due to marital conflicts which were caused by alcohol abuse, and the Veteran's depression did not appear to be related to his military service. The Veteran underwent another VA examination in November 2015 and was found to have not met the DSM-V criteria for PTSD. The psychologist opined that the Veteran's depression existed from when he was a child. The Veteran asserted that his depression was exacerbated by his military service to the extent that he made a suicidal gesture in the late 1970s when he put a gun in his mouth. In July 2016, a private psychologist found that the Veteran's depressive disorder was related to his military service experiences. The private psychologist reasoned that the Veteran's depression was due to his in-service stressors of witnessing multiple combat deaths and being thrown from a vehicle after an explosion. The private psychologist further opined that the Veteran's drug abuse, as supported by his service records, and resulting behavior was evidence of the onset of the Veteran's psychiatric disability in service. In March 2017, a VA psychologist reported that, per the Veteran's clinical interview, the Veteran suffered from mental health issues prior to military service. The psychologist opined that the condition clearly and unmistakably existed prior to service and was not aggravated beyond natural progression based on his review of the service treatment records and subsequent medical files that did not provide complaints regarding mental health or congruent symptoms. The psychologist continued that although the Veteran met the criteria for depressive disorder and alcohol abuse, his diagnosis was evident prior to military service and his service treatment records did not confirm complaints of mental health disorders. For the following reasons, entitlement to service connection for acquired psychiatric disorder, diagnosed as depressive disorder, is warranted. Multiple VA treatment records and a July 2016 private psychologist's examination report noted the Veteran's diagnosis of depressive disorder. Thus, entitlement to service connection for this disorder must be considered in addition to entitlement to service connection for PTSD. Given the above noted diagnosis, the Veteran has met the current disability element of the claim. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). A May 2015 VA treatment record noted that the Veteran reported engagement in combat and witnessing people die. He also indicated that he was involved in a vehicle explosion by a suspected rocket-propelled grenade (RPG) where he was thrown from the Jeep he was driving. A December 1972 service treatment record confirms he was involved in an automobile accident and was air evacuated. The Veteran's military personnel records confirm that he served in Vietnam as an Infantryman. When there is no award signifying combat, a combat determination must be made on a case by case basis. VAOPGCPREC 12-99 (October 18, 1999). A finding that a veteran engaged in combat with the enemy under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) requires that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone," but did not themselves engage in combat with the enemy. Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). Given the December 1972 service treatment record, the May 2015 VA treatment record, the Veteran's military personnel records, and the Veteran's statement regarding the RPG attack, which is credible and consistent with the places, types, and circumstances of his service, the evidence is at least evenly balanced as to whether he engaged in combat with the enemy. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he engaged in combat with the enemy. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim and not merely its ultimate disposition); 38 U.S.C. § 1154(b) (specifying application of the benefit of the doubt doctrine for in favor of combat veterans). Moreover, the fact that the Veteran engaged in combat with the enemy not only assists him in establishing the in-service disease or injury element but may also assist him in establishing the incurrence of the disability itself. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The April 2007, November 2015, and March 2017 VA examinations are all of little or no probative weight. The April 2007 VA opinion is of little probative weight as the VA psychiatrist failed to consider the Veteran's lay statements in regard to combat service in Vietnam. The November 2015 VA examination is inadequate as it did not address the issue of whether the Veteran's depression preexisted service using the correct legal standard, namely, whether there was clear and unmistakable evidence that the Veteran's depression existed prior to service. Lastly, March 2017 VA examination is of little, if any, probative value because it is partially based upon an inaccurate history. Specifically, although the March 2017 reasoned that the Veteran's service treatment records did not provide evidence of complaints regarding mental health or congruent symptoms, mental health symptoms are noted in his service treatment records as early as December 1972. Therefore, the March 2017 VA opinion is partially based on an inaccurate history and is of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The Board gives some probative weight to the July 2016 private psychologist's opinion that found the Veteran's depressive disorder was related to his military service. As the private psychiatrist provided the reasons for the conclusion based on an accurate characterization of the evidence, to include the Veteran's reported history, which is credible and consistent with the Veteran's circumstances of his service, and reading the opinion as a whole and in the context of the evidence of record, the opinion is entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For the foregoing reasons, the evidence is approximately evenly balanced as to whether the Veteran's depressive disorder is related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the issue on appeal has previously been characterized as entitlement to service connection for PTSD. However, given that there is no indication that there are psychiatric symptoms clearly attributable to psychiatric disorders other than depressive disorder, for which service connection is being granted, further discussion of PTSD or any other psychiatric disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.