Citation Nr: 21031250 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-15 651 DATE: May 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. FINDING OF FACT The preponderance of the evidence shows that the Veteran's current acquired psychiatric disorder is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have 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 from September 1985 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2019 and December 2020, the Board remanded this matter for further development. Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder, which he contents had its onset in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, service treatment records reflect that the Veteran began service with a clinically normal entrance examination. In December 1997, he was treated for depressive disorder NOS. Such was noted to be resolved approximately 6 months later. However, in May 2005, he underwent a mental disorder exam for the Naval Separation Exam program, during which he was diagnosed with adjustment disorder with anxiety. A June 2005 separation physical further notes a diagnosis of depression, controlled, for which the Veteran was not on any medications, but that he describes as "chronic" and reported had its onset in 1997. Post-service, the evidence shows that in November 2008approximately only three years after separationthe Veteran sought mental health treatment for anxiety, referencing circumstances related to his service. He was diagnosed with depressive disorder NOS. A June 2010 VA examination notes that the Veteran receives treatment for adjustment disorder with depression. Significantly, an October 2015 VA psychologist noted review of the Veteran's chart and recounted his mental health history prior to his TBI. She stated that the Veteran had a history of "mood symptoms and diagnoses preceding TBI and continue to contribute to current limitations in functioning." Therefore, she adjusted his diagnoses (Mood DO due to TBI and Major Depressive Disorder) to reflect both mood changes due to TBI and preceding symptoms. The Board notes that a September 2012 VA opinion was previously found inadequate by the Board, and now finds that a December 2019 VA opinion, which opined negatively on a relationship between the Veteran's acquired psychiatric disorder and service, to be inadequate as well. In particular, such opinion stated that there was no record of mental health symptoms upon discharge, and that there are no mental health records from the years immediately following military discharge. Such statements do not accurately reflect the Veteran's medical historyspecifically, the noted psychiatric disorders at his separation examinations and the psychiatric treatment he sought after service, prior to his TBI. As such, the opinion is premised on an incorrect factual background, and is afforded no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). The Board acknowledges the January 2021 VA opinion which linked the Veteran's current psychiatric disorder to his post-service TBI, as well as other medical evidence of record linking psychiatric diagnoses to his TBI. However, such opinion does not reconcile the Veteran's pre-TBI mental health history with the finding that his current psychiatric disorder is due to his TBI alone. In support of his appeal, the Veteran submitted lay statements, from himself and others, which consistently detail difficulties he faced in serviceprimarily unjust treatmentwhich negatively impacted his mental health. One such statement is an October 2015 letter from his wife, in which she described how he suffered from anxiety and depression during service, prior to his TBI. Specifically, she described negative experiences the Veteran endured during service, and she discussed the lasting impact it had on him. Here, the Board finds the lay statements credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, to include in-service treatment for depression, and post-service medical records showing psychiatric treatment relatively shortly after service separation and referencing in-service experiences. Accordingly, while the evidence shows additional psychiatric impairment related to his TBI, the Board finds that the Veteran already had an acquired psychiatric disorder prior to such injury. Such finding is supported by the facts above, showing in-service treatment for psychiatric symptoms, post-service treatment for such, the lay statements of record, and, the October 2015 VA psychologist's finding, which was based on a review of the Veteran's mental health history. Therefore, based on the above, and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.