Citation Nr: 21030675 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-06 040 DATE: May 19, 2021 ORDER Service connection for an acquired psychiatric disability is granted. REMANDED Service connection for traumatic brain injury (TBI) is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his psychiatric disability had its onset and is related to service. CONCLUSION OF LAW The criteria for service connection for acquired psychiatry disability have been met. 38 U.S.C. §§ 1110, 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 June 2009 to June 2013. In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran's claim of service connection for an acquired mental disorder has been recharacterized to include all psychiatric disorders reasonably raised by the record. Additionally, his claim of service connection for a TBI has been recharacterized to include all neurological disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an 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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The United States Court of Appeals for the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Psychiatric disability The Veteran seeks service connection for his psychiatric condition. In support, he reported that he started suffering from depression in service after his deployment. See BVA hearing transcript (November 2019). Additionally, his service and post service medical treatment records show that he started suffering from a psychiatric disability in service and continued thereafter. See STR (April 2013) and VA medical treatment record (March and September 2016). Further, the Veteran has been diagnosed by VA doctors with depression. See VA medical treatment record (March 2015). Thus, the Veteran has a current condition, and establishes the first element for service connection. Additionally, the Veteran's STR shows that he suffered and was treated with medications for his depression in service. See STR (April 2013). The Veteran testified to having recurrent psychiatric problems since service and following the hearing the Veteran submitted a lay statement corroborating that account. The Board finds that the medical and lay evidence linking the Veteran's psychiatric disability to service is probative, competent and credible. The Veteran's medical records show complaints of depression in service and thereafter. In-service and post-service records show that the Veteran has various outpatient treatment records of his psychiatric disability. Indeed, the Veteran's STR shows that he suffered from a psychiatric disability in service. Further, the Board also finds that the competent and credible medical and lay evidence, shows that his psychiatric problems began during service and have been recurrent since that time. The Veteran is competent to report his psychiatric symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. In light of the competent lay and medical evidence linking the Veteran's psychiatric disability to service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's psychiatric disability is warranted because his psychiatric disability had its onset during his period of military service. As such, service connection for psychiatric disability is granted. See 38 C.F.R. § 3.303 (a). REASONS FOR REMAND TBI The Veteran reports that service connection is warranted for a neurological condition. In support, he credibly stated that his condition began in service after he suffered an injury to his head. Additionally, he reported that ever since his injury in service he has had problems with his memory. See BVA Hearing transcript (November 2019). Indeed, his record shows a diagnosis and treatment for TBI. Therefore, the Board finds that the Veteran warrants a medical examination to determine his neurological disabilities. To this date, the Veteran has not been afforded a VA medical examination for his neurological condition. Therefore, the Board finds it necessary for a VA examination to determine the nature, onset and etiology of any neurological condition present, to include TBI. As there is no examination to determine the cause of his neurological condition, a remand is necessary to have the Veteran examined and for an examiner to review his claims folder and provide opinions necessary to adjudicate this appeal. The matter is REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran's TBI and any other neurological conditions present. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service neurological problems. The Veteran should also be invited to submit medical evidence addressing his TBI and neurological conditions. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner to determine the nature, onset, etiology of his TBI and any other neurological conditions. a) The examiner should provide a full description of his TBI and all neurological problems and report all signs and symptoms necessary for evaluating the Veteran's disability. b) The examiner must opine as to whether it is at least as likely as not that the Veteran's TBI and neurological problems, are related to or had its onset in service. (Continued on the next page) c) In doing so the examiner must specifically acknowledge and discuss the Veteran's medical and competent lay reports, including his injury and onset in service of any TBI or neurological problems and treatments. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.