Citation Nr: A25035861 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240925-476999 DATE: April 18, 2025 ORDER Service connection for major depressive disorder and adjustment disorder (claimed as major depression and anxiety) is granted. FINDINGS OF FACT 1. The evidence shows current diagnoses of major depressive disorder and adjustment disorder with mixed anxiety and depressed mood. 2. The Veteran experienced stressful circumstances during service. 3. The current diagnoses of major depressive disorder and adjustment disorder with mixed anxiety and depressed mood are related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for major depressive disorder and adjustment disorder with anxiety have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active-duty service from June 1969 to June 1971. By way of procedural history, the Veteran filed a supplemental claim for service connection for major depression and anxiety in April 2024. An August 2024 rating decision found new and relevant evidence and denied service connection on the merits. The Veteran filed a notice of disagreement in September 2024. This matter is before the Board of Veterans' Appeals (Board) on appeal from the August 2024 Appeals Modernization Act (AMA) rating decision. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Board Hearing docket. A Board hearing was held on January 13, 2025, and a copy of the transcript is included in the record. Therefore, the Board may only consider the evidence of record at the time of the August 2024 agency of original jurisdiction (AOJ) decision, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b). Service connection for major depressive disorder and adjustment disorder is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 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 all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran appeals for service connection for major depression and anxiety disorders that he contends were the result of several incidents that occurred during service. The August 2024 rating decision favorably found a diagnosed (current) mental health disability. Under the AMA, the Board is bound by favorable findings made by the AOJ in the absence of evidence of clear and unmistakable error. 38?C.F.R. §?3.104(c). The record shows multiple diagnoses by VA examiners during the claim period or immediately prior to the supplemental claim. A November 2023 VA examination showed a diagnosis of major depressive disorder (herein MDD) and adjustment disorder with mixed anxiety and depressed mood (herein adjustment disorder). A May 2024 VA examination showed a diagnosis of MDD. Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, no psychiatric conditions were "noted" on entry into service. Upon entry to service, the Veteran did not report depression or excessive worry. See May 1969 service treatment records. There is some post-service evidence that suggested depression existed prior to service enlistment as post-service statements by the Veteran indicated mild symptoms of depression beginning at 12 years of age, and the November 2023 VA examiner indicated that depression was preexisting to service; however, the record does not contain clear and unmistakable evidence that the depression preexisted service. See Horn v. Shinseki, 25 Vet. App. 231 (2012). Because the presumption of sound condition at service entrance has not been rebutted, aggravation by/during service is no longer the question. Rather, the case converts to one for direct service connection, and direct nexus to service is the relevant question. See Wagner, 370 F.3d at 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in approximate balance as to whether the Veteran experienced stressful circumstances during service. Service treatment records show no psychiatric complaints, findings, or diagnosis at service entrance, during service, and at service separation. The Veteran testified that during the first two and a half months of service, he was housed in a barracks with servicemembers who had returned from deployment in the Republic of Vietnam, where they had severe injuries and flashbacks. See January 2025 hearing testimony. The servicemembers would ignore and belittle the Veteran because he was not deployed. The Veteran reported that he felt immense guilt, shame and other depressive symptoms because he was not deployed. See October 2023 statement of Veteran. The Veteran reported that depressive symptoms increased as a result of time spent with the injured servicemembers because of their injuries and not feeling accepted by them. See October 2023 Medical Opinion DBQ. The Veteran also reported that he was disturbed that his brother-in-law was shot and injured in the Vietnam War while the Veteran was in service. See January 2025 hearing testimony. The Board finds the Veteran's statements to be probative as to the claimed in-service events and weigh in the Veteran's favor. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in approximate balance as to whether the currently diagnosed MDD and adjustment disorder are related to service. In the November 2023 VA examination, the examiner opined that the diagnosed MDD and adjustment disorder were at least as likely as not incurred in or caused by the claim in service stressors. In support of this opinion, the examiner noted that the Veteran denied significant depression upon entry in to service; depressive symptoms increased as a result of time spent in the barracks with servicemembers who had lost limbs due to combat; the Veteran experienced depression from interacting with them and observing the extent of injuries; the Veteran was not accepted by these servicemembers because he had not experienced combat; the Veteran continued to struggle with feelings of shame and guilt for not being in combat. The examiner had an accurate history, had medical expertise and training, and provided a sound rationale for the medical opinion; therefore, the November 2023 VA medical opinion is of probative value. The November 2023 VA opinion is consistent with other evidence of record, including statements of the Veteran and his wife. The Veteran reported consistent post-service job changes every five years due to depression. The Veteran's wife, who was married to him since service, testified that since service the Veteran had consistent mood swings, including anxiety and depression, with worsening symptoms over time. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for MDD and an adjustment disorder have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Beilsmith, 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.