Citation Nr: 22040189 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-44 210 DATE: July 13, 2022 ORDER Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, as secondary to a service-connected major depressive disorder, is remanded. Entitlement to service connection for erectile dysfunction, as secondary to a service-connected major depressive disorder, is remanded. FINDINGS OF FACT 1. There is evidence which both supports and goes against the Veteran's service connection claim for major depressive disorder. 2. The Veteran's major depressive disorder is related to active service. CONCLUSION OF LAW The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1971 to March 1973, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2017 and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the RO in August 2021. A virtual Board hearing was held later in August 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In January 2022, the Board remanded the currently appealed claims to the RO for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the RO obtain an addendum opinion concerning the nature and etiology of the Veteran's acquired psychiatric disability other than PTSD, to include major depressive disorder. Opinions subsequently were obtained in February and April 2022 and associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Because the Veteran lives within the jurisdiction of the RO in Jackson, Mississippi, that facility has jurisdiction in this appeal. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder The Board is persuaded that the evidence supports granting the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder. The Veteran essentially contends that his current acquired psychiatric disability is related to active service. The record evidence is in relative equipoise on the issue of whether the Veteran's acquired psychiatric disability other than PTSD (currently diagnosed as major depressive disorder) is related to active service. In other words, there is evidence which supports and goes against this claim. On the one hand, in an addendum opinion dated in February 2022, a VA clinician opined that it is less likely than not that the Veteran's acquired psychiatric disability other than PTSD (which was diagnosed as major depressive disorder) is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was: While the Veteran's childhood friend indicates that the Veteran served about 3 months in Vietnam there is no record indicating that the Veteran served overseas or engaged in combat. He stated that he did not engage in combat and the evidence does not support that the Veteran's current diagnosis of [major depressive disorder] has been continuous since his discharge from the military in 1973 or that the noted stressors are the cause of his current depression; therefore, there is no nexus between the current diagnosis of [major depressive disorder] and the Veteran's military service. On the other hand, in a second addendum opinion dated in April 2022 opinion, the February 2022 VA clinician opined that it is at least as likely as not that the Veteran's acquired psychiatric disability other than PTSD (which was diagnosed as major depressive disorder) is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was: Evidence shows [that the] Veteran served in Vietnam. Giving the Veteran the benefit of the doubt, the Veteran's current diagnosis of major depressive disorder was at least as likely as not (greater than 50% probability) incurred in or caused by his service in Vietnam. This opinion was rendered in consideration of the VA's criteria of the Veteran's reports being "consistent with the circumstances, conditions or hardships of combat service even though there is no official record of such incurrence or aggravation in the Veteran's service treatment records." Additionally, the Veteran's reported symptoms are consistent with his reports of exposure to witnessed trauma. The Veteran contends that he incurred his current acquired psychiatric disability during active service and experienced continuous post-service disability. It is undisputed that the Veteran currently is diagnosed as having major depressive disorder. The record evidence also shows that he was "in-country" in Vietnam because his service treatment records show that he received outpatient treatment for a variety of complaints in November and December 1971 while in Vietnam. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). The evidence (medical nexus opinions dated in February and in April 2022) is in relative equipoise on whether the Veteran's currently diagnosed major depressive disorder is related to active service. It appears that the VA clinician initially opined in February 2022 that this disability is not related to active service based on a lack of evidence showing in-country duty in Vietnam and then reversed herself in April 2022 and provided a positive medical nexus opinion when she reviewed evidence showing such duty. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder, is warranted. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea and for erectile dysfunction, each including as due to a service-connected major depressive disorder, is remanded. The Veteran also contends that his current obstructive sleep apnea and erectile dysfunction are related to service. He specifically contends that major depressive disorder caused or aggravated his current obstructive sleep apnea and erectile dysfunction. The record evidence clearly shows current diagnoses of and ongoing treatment for obstructive sleep apnea, including the use of a continuous positive airway pressure (CPAP) machine, and for erectile dysfunction. The Board already granted service connection for major depressive disorder (as discussed above). To date, a clinician has not been asked to provide an opinion as to whether either the Veteran's obstructive sleep apnea or his erectile dysfunction is related to his service-connected major depressive disorder. Thus, the Board finds that, on remand, opinions should be obtained which address these matters. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's obstructive sleep apnea. The Veteran does not need to report for examination. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether major depressive disorder caused or aggravated obstructive sleep apnea. A rationale must be provided for any opinion(s) expressed. 3. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's erectile dysfunction. The Veteran does not need to report for examination. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether major depressive disorder caused or aggravated erectile dysfunction. A rationale must be provided for any opinion(s) expressed. 4. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.