Citation Nr: 21040520 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 19-27 254 DATE: July 5, 2021 ORDER Service connection for depression is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's depression is proximately due to an in-service incident of acute back pain. CONCLUSION OF LAW The criteria for entitlement to service connection for depression have been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. § 38 U.S.C. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1970 to September 1970 and from April 1972 to November 1973, with additional service in the U.S. Army Reserve and Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the appeal in a September 2019 decision which was appealed to the Court of Appeals for Veterans Claims (CAVC). The CAVC granted a Joint Motion for Remand (JMR) in September 2020 and the Board remanded this matter in February 2021 for development in accordance with the JMR directives. While this matter was pending on remand status, the CAVC issued another decision in April 2021 which set aside the September 2019 decision and again remanded it for further development. Service connection for depression Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. Certain chronic diseases, to include arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection solely on the basis of continuity of symptomatology can only be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54 ). The January 1970 entrance examination prior to the Veteran's first period of active service disclosed normal psychiatric findings, and the accompanying report of medical history is negative for any psychiatric complaints. On his report of medical history on April 19, 1972, a few days after he entered active duty, he checked off "yes" for depression and excess worry and for loss of memory/amnesia. The actual examination of that same date for "lost records" revealed normal psychiatric examination. Service treatment records (STRs) are otherwise negative for psychiatric issues being reported, treated, or diagnosed and a March 1974 National Guard enlistment examination disclosed normal psychiatric findings. However, the records do show that the Veteran was treated at various times during service for complaints of back pain and apparent muscular injury following an accident as noted in June 1972, but with negative X-ray findings in June 1972, and July 1973. Although back complaints were shown in service, he is not presently service-connected for a back disorder. National Guard records after November 1973 are likewise silent for complaints of psychiatric issues, although in June 1974 he requested an excuse from annual training due to apparent health issues with his wife, who had symptoms of agitation and depression. In a December 2017 claim the Veteran alleged he had depression secondary to a back disorder but did not indicate when his depression symptoms began. Post-service treatment records include a January 2007 report showing a positive depression screen, as well as a positive PTSD screening. The causation or onset date of his psychiatric symptoms were not given. In February 2010 he was noted to have symptoms of depression deemed related to a potential job loss. He was visibly upset when discussing his current situation. He was assessed with major depression, and rule out adjustment disorder with depressed features. Subsequent records dated in February 2010 also revealed issues with anxiety, as well as depression symptoms, and attributed all his symptoms to job stress. The assessments including anxiety disorder not otherwise specified (NOS), rule out generalized anxiety disorder (GAD). Later the same month the Veteran was treated in the ER for symptoms that included paranoia with beliefs that the government was listening to his phone calls. He was noted to not have any past psychiatric treatment until the previous week. He was diagnosed with major depressive disorder (MDD) severe, with psychotic features. In March 2010 he was seen for the psychiatric diagnosis of major depression with psychotic features, and was described as improved but with a history of paranoid thoughts about his coworkers and his job. He was described as improved since starting medication back in February. He was assessed as improving with treatment but still had significant depression and paranoia. His anxiety had markedly improved. Records dated in March and April 2011 reflect ongoing treatment for the diagnosis of major depression, single episode, moderate, with the records addressing his stabilization with medication and his coping with life stressors including financial stressors and the fact that he was on long term disability with uncertainty about how he would cope with returning to his stressful job. In May 2011 his treating psychiatrist indicated that although he was not suicidal and could perform activities of daily living, there were still serious concerns about his ability to return to work which could cause a recurrence of anxiety and depression and possibly psychotic symptoms. Records dated in July 2011, August 2011, and December 2011, addressed treatment for diagnosed major depression, recurrent moderate with the records focusing on the impacts of this disorder on his ability to return to work. He was noted to have had a hearing for Social Security Disability claim in December 2011. None of these records from 2007 through 2011 contained any discussion regarding any possible links of his depressive disorder to service or any incident therein. Records from 2012 continued to show a diagnosis of major depression or alternately major depressive disorder with a history of psychotic features in remission. In January 2012, in addition to the continued diagnosis of major depression, he had complaints of anxiousness and trouble remembering things likely related to anxiety. His anxiety increased at the thought of returning to work, which his doctor was not sure he would be able to do. He complained of a lowering of his mood and lacked enjoyment in things he used to enjoy doing. However, he did not have any issues with hallucinations or paranoia. He was granted Social Security Disability benefits in February 2012 but had mixed feelings about this award as he still wished to work. In May 2012, his psychiatrist attributed his current mood issues in part to his not having a real purpose such as a job. There were concerns that his anxiety and depression could increase if he went back to work and did not fare well. Records in May 2012 and June 2012 continued to show issues with variable mood and feelings of worthlessness that appeared associated with his lack of employment as noted in May 2012. In August 2012 he was doing fairly well and was attempting to interview for a job on a trial basis without losing his Social Security disability. In November 2012 the Veteran reported being fired recently but was believed to be doing better since his job situation was no longer in limbo. Records showed he continued to take medications for depression in 2012 and 2013. In January 2015 he denied depression and was not presently on medications. Depression screening was negative in January 2015 and in a March 2016 record he denied depression and anxiety. In a May 2017 record he denied depression, with a review of systems for depression indicating that he was doing well and had not needed counseling for mental health for some time. Records in August 2017 and December 2017 noted a past medical history of depression. In December 2017 he again denied current symptoms of depression and stated he was doing well and had not needed counseling or mental health treatment for some time. Records from 2018 addressing other medical issues noted a current diagnosis of depression noted in July 2018. In April 2021 the Veteran underwent a VA examination which diagnosed Major Depressive Disorder, recurrent, Moderate. The examination included examination of the Veteran and review of the evidence with recitation of the pertinent medical and lay evidence. His present symptoms included depressed mood, suspiciousness, chronic sleep impairment, flattened affect, circumstantial, circumlocutory or stereotyped speech, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. On behavioral observation he was appropriately dressed but appeared disheveled, was physiologically well-appearing, and appeared his stated age. His attitude was irritable at times, cooperative, and open with the examiner. His behavior was without any psychomotor agitation or retardation nor any "TD" movements. His speech was hyperverbal, but with normal volume. His affect was reactive, with his mood congruent, and anxious. His thought Process was racing, and circumstantial. His thought content was without any suicidal or homicidal ideation nor any delusions, phobias, obsessions, or compulsions. There was no evidence of hallucinations nor delusions. His orientation was intact to person, place, and time. His memory appeared intact with immediate, recent, and remote memory. Concentration appeared normal. The Veteran met the criteria for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation based on their symptoms of depressed mood, chronic sleep impairment and suspiciousness. Following examination, the examiner gave the opinion that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond natural progression by an in-service injury, event, or illness. The examiner reasoned that the Veteran's depression was secondarily caused by his back injury while in service. Therefore, the current depression condition is less likely than not aggravated by service. While he did report depression and excessive worry in April 1972, he had already served in the military from May 12, 1970 to September 12, 1970. His depression and anxiety were said to have worsened after his back injury and the resulting pain that continues to this day. The examiner stated that review of claimants e-Folder yielded no pertinent inconsistencies and the Veteran was considered a reliable historian. The examiner noted that the Veteran had no documented mental health issues prior to his time in the military. The examiner also considered treatise evidence from the article "Depression, anxiety and acute pain: links and management challenges" found in a 2019 edition of the journal Postgraduate Medicine. The examiner cited to the following statement in which the article's authors noted "The link between mood disorders and acute pain has proven to be increasingly significant since the link is bi-directional, and both act as risk factors for each other. Depression and anxiety are associated with increased perception of pain severity, whereas prolonged duration of acute pain leads to increased mood dysregulation." Initially, the Board finds that, as the Veteran is not service-connected for a back disability, there is no legal basis for granting service connection on a secondary basis. See 38C.F.R. §3.310(a). However, the Board finds the evidence to be in equipoise as to whether service connection is warranted for a depressive disorder as related to an in-service injury or event on a direct basis. Although the April 2021 examiner gave an opinion that the depressive disorder clearly and unmistakably pre-existed service, the Board finds the evidence does not support a finding of an undebatable pre-existing psychiatric disorder. His psychiatric evaluations were normal prior to service, and the April 1972 report of medical history where he checked off "yes" for depression and excess worry and for loss of memory/amnesia was actually dated a few days after he entered active duty. There is no other evidence suggesting a pre-existing psychiatric disorder. Thus, the Veteran is presumed sound and such presumption has not been rebutted, as the file lacks clear and unmistakable evidence of preexisting disorder and also lacks clear and unmistakable evidence that a preexisting depressive disorder was NOT aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Again, the Veteran here is deemed sound on entry to service. Moreover, the rationale in the April 2021 examiner's opinion forms the basis of a grant for service connection on a direct basis. Specifically, the examiner firmly states that the Veteran's depression was caused by his back injury specifically occurring during active service. This statement was supported by review of the evidence and medical treatise evidence and is adequate rationale. Although service connection is not in effect for a back disability, there is evidence of acute back pain and injury shown in the service treatment records. Thus, this examiner's opinion links the onset of the Veteran's depression to an inservice event shown to be an acute in-service back injury in June 1972. This is specifically a finding of current disability that is related to an injury or disease in service. See Watson supra; see also Brammer supra, 3 Vet. App. 223, 225 (1992); Rabideau supra. There is no evidence that directly contradicts this finding that the in-service incident of acute back injury and pain triggered the Veteran's depression. Although some of the post service treatment records showed evidence of his depression and anxiety being impacted negatively by employment related stressors, they do not directly contradict this opinion. (Continued on the next page) The private opinion is at least on equal probative footing as the unfavorable evidence suggesting a possible post-service causation for the Veteran's depressive disorder. Consequently, the balance of the evidence is in favor of granting service connection for a disability of depression on a direct basis. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.