Citation Nr: 21042207 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-38 401 DATE: July 12, 2021 ORDER Entitlement to service connection for major depressive disorder (MDD) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had MDD at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for MDD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had two periods of active military service from March 2005 to July 2006 and from January 2008 to April 2009, including service in Southwest Asia from April 2008 to January 2009. This appeal comes to the Board of Veterans' Appeals (the Board) following a December 2011 rating decision that denied the Veteran's claim for entitlement to service connection for MDD. The claim was previously before the Board in September 2018, at which point the Board remanded it to provide the Veteran with a new Department of Veterans Affairs (VA) examination regarding the etiology of the Veteran's MDD, if present. The Board has considered whether the Veteran's claim for service connection for MDD should be expanded to include any acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), for which the Veteran is already service connected and receiving a 70 percent disability. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). However, the only possible psychiatric disorders referenced in the evidence of record are MDD and PTSD. Because the Veteran is already service connected for PTSD, the scope of this appeal is therefore limited to service connection for MDD. 1. Entitlement to Service Connection for MDD The Veteran asserts that he is entitled to service connection for MDD. In January 2020 and March 2021 statements, he asserted that his depression began as a side effect of a smoking cessation medication he was prescribed during active service in 2005. Alternatively, in an August 2018 brief, his representative contended that the Veteran's MDD is related to his service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed herein, the Board concludes that service connection for MDD is not warranted because the Veteran does not have a current diagnosis of MDD, nor has he had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran most recently received a VA examination in April 2021. After reviewing the Veteran's medical records and examining the Veteran, the VA examiner opined that, while the Veteran experienced depressive symptoms, he did not have a diagnosis of MDD. Rather, the depressive symptoms noted in the past were manifestations of his service-connected PTSD, as well as substance abuse. Thus, the examiner concluded that the Veteran's depressive symptomsincluding decreased motivation and energy, anhedonia, occasional feelings of helplessness and hopelessness, crying, and irritabilitydid not warrant a separate diagnosis because they were all symptoms of his service-connected PTSD. It is also noted that near-continuous depression affecting the ability to function independently is factor/symptom that is considered in the 70 percent rating that is presently assigned for PTSD. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. While the Veteran's VA psychiatric treatment records show that Dr. D.R.S. diagnosed the Veteran with MDD with psychotic features in July 2012, there is no indication that Dr. D.R.S. performed any diagnostic tests or considered the Veteran's full medical history when rendering this diagnosis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a thorough medical examination considers records of prior medical treatment so that the evaluation of the claimed disability is fully informed). Instead, it appears as if the diagnosis is based on the Veteran's self-reported medical history, which is inconsistent with prior VA treatment records that show subjective complaints/symptoms of depression and suicidal ideation, but no diagnosis of MDD or any other depressive disorder. Consequently, the Board assigns more probative weight to the April 2021 VA examiner's determination that the Veteran does not have a separate diagnosis of MDD. The Board acknowledges the Veteran's reports of depressed mood and suicidal ideation. However, he is not competent to provide a diagnosis of MDD in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board gives more probative weight to the competent medical evidence of record discussed above. In sum, the evidence of record does not show that the Veteran had MDD at the he filed his claim or during the pendency of his claim. The facts of the Veteran's appeal are distinguishable from those of McClain and Romanowsky. In those cases, the veterans had current disabilities at the time they filed their claims for entitlement to service connection. McClain, 21 Vet. App. at 323; Romanowsky, 26 Vet. App. 293-94. However, as discussed above, the evidence does not support the conclusion that the Veteran ever had a diagnosis of MDD that was separate from his service-connected PTSD. His complaints of depression have been attributed to his PTSD rather than being a separate and distinct disability. Entitlement to service connection for MDD on a direct basis must thereby be denied. Consideration has been given to the Veteran's alternative argument, made through his representative, that he is entitled to service contention for MDD as secondary to his service-connected PTSD. However, as discussed above, there is insufficient evidence to support a separate diagnosis of MDD, which is required to establish secondary service connection. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995); Wallin v. West, 11 Vet. App. 509, 511 (1998). Thus, the Board concludes that entitlement to service connection for MDD as secondary to the Veteran's service-connected PTSD is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.