Citation Nr: 22018181 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-17 196 DATE: March 28, 2022 ORDER Entitlement to service connection for unspecified depressive disorder, claimed as depression and anxiety, is granted. FINDING OF FACT It is just as likely as not the Veteran's depressive disorder is attributable to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for depressive disorder. 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 July 1971 to January 1976. This appeal to the Board of Veterans' Appeals (Board) is from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Veteran testified in support of this claim during a November 2021 hearing at the RO before the undersigned Veterans Law Judge of this Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. A transcript of the hearing is of record. Entitlement to service connection for unspecified depressive disorder The Veteran maintains that he started experiencing this depressive disorder during his service, primarily owing to his experiences in Alaska and Guam from 1972 to 1975, and that this disorder has persisted ever since. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran received a diagnosis of unspecified depressive disorder in March 2014, consistent with standards set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125(a), 4.130. So, there is no disputing he has this claimed disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Resolution of the appeal of this claim therefore turns, instead, on whether there also is the required attribution of this unspecified depressive disorder to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As for what occurred in service, the Veteran's service treatment records (STRs) show he reported trouble sleeping and depression, with sudden weight gain, while on active duty between December 1974 and January 1975. During a more recent April 2013 mental health consultation prior to filing this disability claim, the Veteran related that he began feeling sad, anxious, isolated, and agitated during his active-duty service, first while stationed in Alaska during the winter, and then in Guam, where he felt threatened by the local population and trapped on base. He reported self-medicating with alcohol while at those locations. He essentially gave this same recitation of his history while testifying during his even more recent November 2021 hearing before this Board, so he has been rather consistent in this recollection. His lay testimony concerning this consequently is credible, but also competent since he can attest to events that he has firsthand knowledge concerning. See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Falzone v. Brown, Vet. App. 398 (1995). Moreover, because his lay testimony is both competent and credible, it is ultimately probative. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted, and his statements are both. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). That said, there nonetheless is some conflicting evidence regarding whether his unspecified depressive disorder is the result of his service in Alaska and Guam. During his November 2021 hearing, he maintained that the isolation and sadness he first experienced in service have continued since, reflected as current depression and isolationist tendencies. He also reported being profoundly, negatively impacted by moving from the southern United States to Alaska in winter, shoveling snow and assisting with earthquake recovery in the dark. He was then transferred directly to Guam, where the locals were unfriendly towards military, forcing him to remain in one location and again giving him a sense of isolation. He was aware of other servicemembers moving in and out of his location to combat in the Republic of Vietnam and, although he never experienced any incidents directly, he was told there was a high suicide rate at his location. In total, he was stationed in Alaska and Guam consecutively from 1972 until 1975. In prior filings to VA, he described both these locations as completely isolating and distressing, akin to being in prison. His symptom statements are consistent with STR reports. He is further competent to report the onset and nature of his psychiatric symptoms, as well as the effect of his symptoms on his ability to function. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Mental health treatment notes from January 2004 indicate he had previous treatment for depression, although nothing appears in the record between his STRs and January 2004. As such, the Board finds his statements highly probative (competent and credible) on the determinative issue of nexus. However, the record on appeal also shows the Veteran sustained an intervening ("intercurrent") back injury while working for Delta Airlines in 1987, in turn resulting in him losing that job in 1989. Mental health treatment notes from January 2004 onward cite that incident, and related financial concerns, as a major source of his stress. A March 2014 VA mental disorder examination accordingly found no evidence of a chronic mental health disorder attributable to his active-duty service, including in Alaska and Guam, concluding instead that his depression is less likely than not attributable to his service and more likely due to losing his job. The Board does not find that examination and opinion determinative, however, as it failed to consider whether the Veteran's statements even absent that intervening event, were sufficient to establish service connection or, at the very least, speak to symptom continuity since his service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding inadequate a VA examiner's opinion that relied exclusively on the absence of contemporaneous medical evidence and had "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim of service connection could be proven"). That examination and opinion also mistakenly characterized the Veteran's treatment history, stating there was no evidence of mental health treatment before March 2005, when in fact there was. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). Indeed, as the representative pointed out during the hearing, that examiner apparently did not consider or otherwise reconcile the Veteran's relevant complaints during his service that are documented in his STRs. Despite that examiner's reservation, the Board sees that the Veteran's VA mental health care providers from April 2013 onward diagnosed his depressive disorder based on symptoms including sadness, agitation, sleeplessness, and self-isolation. This evidence, while not in the form of a medical opinion, per se, nonetheless is persuasive evidence linking his current psychiatric disorder at least partly to the experiences during his service. Consequently, at the very least there is "approximate" (meaning nearly equal) balance of evidence for versus against this claim if not evidence more supportive of this claim than against it. Thus, the Board is granting this claim for service connection for depressive disorder. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.