Citation Nr: 21041312 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 06-20 318 DATE: July 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, is granted. FINDING OF FACT The most probative evidence of record establishes a nexus between an in-service event and the Veteran's acquired psychiatric disability, claimed as depression. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as depression, have been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1981 to December 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated July 2005 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. In April 2009, November 2010, May 2012, and June 2017 the Board remanded the issue of service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities. In January 2019, the Board denied the issue of service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the part of the January 2019 Board decision that denied entitlement to service connection for an acquired psychiatric disorder. The issue has now been returned to the Board for adjudication. Service Connection Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for an acquired psychiatric disorder, claimed as depression With consideration of the above described regulations governing acquired psychiatric disorder claims, the Board finds the evidence, when considered in a light most favorable to the Veteran, warrants a finding of entitlement to service connection for an acquired psychiatric disorder. In this case, the Veteran has asserted that he should be awarded service connection for his acquired psychiatric disorder, to include as secondary to his service-connected disabilities. See Appellant's Post-Remand Brief dated April 2017. As the Board is granting this claim based on a theory of direct service connection, the Board finds that it is not necessary to discuss the theory of secondary service connection. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection: a current acquired psychiatric disability, diagnosed as MDD. See Private Psychiatric Assessment dated April 2021. As to the second element, a disease or injury in service, in a March 2021 statement, the Veteran wrote, "In April 1990, my then four-year-old daughter...was in a severe accident...and fractured her skull in several places, leaving her with a severe traumatic brain injury...That event changed my life in ways I will never be able to undo." The Veteran discussed the stress this event put on him, his wife, and his family. He concluded, "The loss of my daughter's future while I was in service, not being able to protect her or my family has affected the way I look at the world ever since and that is where my depression started." The Veteran also discussed several other incidents that exacerbated his depression, including marital discord and work stress. The Board finds no reason to doubt his credibility and the STRs support his statement. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection for an acquired psychiatric disorder, claimed as depression: evidence of an in-service disease or injury. Finally, with respect to the third requirement, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Board finds sufficient credible evidence which establishes this nexus. In a private examination dated April 2021, the examiner wrote, [The Veteran] at least as likely as not developed major depressive disorder with its nidus during active duty service, including severe neurovegetative symptoms of depression, in my professional medical opinion. This constellation of symptoms led to the onset of pervasive and intractable mental illness with a concurrent substance use disorder. Unfortunately, the Veteran's deterioration continued during his civilian life with a progression of his mental illness, substance use disorder, and chronic pain...In addition, there is extensive anxiety-based symptomatology captured within his depressive disorder, only creating a more intractable clinical disease process. This mental illness at least as likely as not originated during the Veteran's active duty service, marked by a steady progression through the present day. The examiner then provided an in-depth discussion of medical chronology, an interview with the Veteran, diagnoses, and findings and conclusions. Diagnoses included major depressive disorder (MDD), recurrent, severe, with anxious distress and substance abuse disorder under the DSM-5. The examiner concluded, "The symptoms [of MDD] at least as likely as not began while the Veteran was on active duty service after the devastating injury to his daughter and have not abated through the current day." The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Therefore, the Board finds that the opinion of the April 2021 private examiner is probative. The Veteran was provided with several earlier VA examinations. The May 2011, July 2017, and July 2018 examiners found no current diagnosis and therefore provided no nexus evidence that may be weighed. Thus, the only probative nexus evidence of record weighs in favor of finding that the Veteran's current acquired psychiatric disorder, claimed as depression, had its onset during active duty service. Therefore, service connection for an acquired psychiatric disorder, claimed as depression, is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.