MAJOR DEPRESSIVE DISORDER

Summary

The Veteran served in the U.S. Army from February 1974 to February 1977. The Veteran appeals the denial of service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with anxious distress, and the remand of the sleep apnea claim. The Veteran contends that her psychiatric and sleep disorders are related to chemical exposures experienced at Fort McClellan. Evidence includes the Veteran's and her spouse's testimony regarding in-service symptoms, a one-time social worker visit during service with a normal separation examination, and later medical evidence showing depression related to family issues. A 2024 VA examiner provided conflicting opinions, initially finding the disorder at least as likely as not related to service due to in-service communication issues, but later concluding it was less likely than not related to Fort McClellan exposures, citing lack of in-service mental health reports. The Board found the later opinions inconsistent with the Veteran's testimony and the initial opinion, and noted the potential for secondary service connection due to the Veteran's service-connected shoulder, cervical spine, and radiculopathy disabilities. Applying the benefit of the doubt, the Board found an approximate balance of evidence regarding the psychiatric disorder's service origin and granted service connection. The sleep apnea claim was remanded for further development, including a PACT Act-compliant examination to assess direct and toxic exposure-related service connection, and to obtain updated VA treatment records and any new private medical evidence.

Rationale

Conflicting VA examiner opinions regarding service connection.; Veteran and spouse testimony regarding in-service symptoms.; Potential for secondary connection to service-connected disabilities.; Benefit of the doubt applied due to approximate balance of evidence.

Full Decision Text

Citation Nr: 26004930
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 16-24 924
DATE: April 24, 2026

ORDER

Service connection for an acquired psychiatric disorder, currently diagnosed as major depressive disorder with anxious distress, is granted.

REMANDED

Entitlement to service connection for sleep apnea is remanded.

FINDING OF FACT

It is at least as likely as not that the Veteran's acquired psychiatric disorder, currently diagnosed as major depressive disorder with anxious distress, developed as a result of active service and/or as secondary to service-connected disability.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for an acquired psychiatric disorder, currently diagnosed as major depressive disorder with anxious distress, have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army from February 1974 to February 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Cheyenne, Wyoming.

In August 2021, the Veteran and her spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the record.

In May 2022 and June 2023, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development.  There has been at least substantial compliance with the remand directives as they pertain to the claim for service connection for an acquired psychiatric disorder.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).  As to the sleep disorder claim, however, further development is required.

As a final introductory matter, the Board notes that the issue of the Veteran's entitlement to service connection for a left shoulder disability was also previously on appeal before the Board.  In a July 2024 rating decision, the AOJ granted service connection for left shoulder strain with degenerative arthritis.  As the July 2024 rating decision represents a full grant of the benefit sought on appeal with respect to that issue, it is no longer before the Board.  Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997).

Entitlement to service connection for an acquired psychiatric disorder

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time she files her claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  An approximate balance of the evidence includes, but is not limited to, equipoise. 
 disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  An approximate balance of the evidence includes, but is not limited to, equipoise.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other.  Id.

As an initial matter, the Board notes that the evidence reflects that the Veteran has an acquired psychiatric disorder.  In pertinent part, a 2024 VA mental disorders examiner diagnosed major depressive disorder with anxious distress.  The report reflects that the examination was conducted in March 2024, and was signed by the examiner in May 2024.

The Veteran has contended that she has psychiatric and sleep disorders that are related to chemical exposures she experienced while on active duty at Fort McClellan.  As discussed in the Board's prior remands, information from a VA website reflects that some personnel who were stationed at that base may have been exposed to one or more of several hazardous materials, likely at low levels.  

The Veteran also testified at the August 2021 Board hearing that she had feelings of depression and sleep problems while on active duty.  She indicated she did not seek treatment during service because it was discouraged.  Her spouse, who knew her during that period, provided supporting testimony.  See Hearing Transcript pp. 11-15, 20-21.

In addition, the Board acknowledges that Veteran's service treatment records reflect that she was seen on a one-time basis by a social worker during service in October 1976.  However, she was not diagnosed with an acquired psychiatric disorder at that time.  Further, her psychiatric status was noted to be normal at the time of her February 1977 service separation examination.  The first medical evidence of such a disorder is dated years after service, and various records note depression related to family issues.

In light of the foregoing medical history, as well as the complex nature of the Veteran's potential exposure to hazardous materials at Ft. McClellan, medical opinion evidence is required to determine whether the Veteran has an acquired psychiatric disorder that was incurred in or otherwise the result of active service.

The Board observes that, as noted on the 2024 VA mental disorders examination report, the Veteran's education includes training as a Certified Nursing Assistant.  That background must be taken into account when evaluating her statements.  See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  In that regard, the Board notes that while the Veteran has clearly had some medical training, there is no indication on the record that she has the specialized knowledge or training of the type necessary to offer competent opinions with respect to the etiology of acquired psychiatric disorders; nor in regard to the effects of the type of chemical exposures she may have experienced at Ft. McClellan.

The foregoing notwithstanding, in making all determinations, the Board must fully consider the lay assertions of record.  A layperson, even without medical training, is generally considered competent to report on the onset and recurrence of observable symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24
 knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The Board notes that the 2024 VA examiner provided multiple opinions regarding the etiology of the Veteran's acquired psychiatric disorder, to include in May 2024 and August 2024.  In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a veteran.  Id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  Most of the probative value of a medical opinion is derived from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . .  must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The Board notes that the pertinent VA examination reports identify the examiner as having a Ph.D. in psychology.  As such, the Board finds no reason to doubt that the examiner has the requisite background generally associated with such; and is thus qualified to provide a competent opinion regarding the nature and etiology of the Veteran's claimed acquired psychiatric disorder.  The Board also notes that the examiner was familiar with the Veteran's medical history from review of her VA claims folder.

In the original May 2024 medical opinion, the examiner concluded that the diagnosed major depressive disorder was at least as likely as not (the likelihood was at least approximately balanced or nearly equal, if not higher) incurred in or caused by the claimed in-service injury, event, or illness.  In support of that opinion, the examiner stated, in essence, that the Veteran shared issues with communicating and interacting with people while in the military, and that the major depressive disorder was related to those experiences.

In a subsequent report dated later in May 2024, the same examiner opined that the current disability was less likely than not (likelihood was less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness.  Specifically, the examiner stated that there was no evidence that the Veteran's diagnosis was related to her exposure to chemicals at Fort McClellan.  In support of that opinion, the examiner stated that there was no report of mental health issues during the Veteran's service, although she had shown mental health issues after military service.  The examiner also stated that the Veteran's lay statement was taken into account.

Finally, in an August 2024 addendum opinion, the same examiner stated that the Veteran denied any mental health issues in the military during evaluation; that she reported that her depression started when she began care giving well after discharge; and that she was given ample opportunity to provide information on mental health issues during the military.  The examiner also stated that no mention of difficulty sleeping was cited in the Veteran's records, and that the one-time visit to a social worker in October 2017 did not reveal any mental health or sleep issues and the Veteran was assessed as being normal
 health issues during the Veteran's service, although she had shown mental health issues after military service.  The examiner also stated that the Veteran's lay statement was taken into account.

Finally, in an August 2024 addendum opinion, the same examiner stated that the Veteran denied any mental health issues in the military during evaluation; that she reported that her depression started when she began care giving well after discharge; and that she was given ample opportunity to provide information on mental health issues during the military.  The examiner also stated that no mention of difficulty sleeping was cited in the Veteran's records, and that the one-time visit to a social worker in October 2017 did not reveal any mental health or sleep issues and the Veteran was assessed as being normal.  The examiner concluded that, in summary, neither the contention of sleep issues nor the visit to the social worker was sufficient evidence for depression starting during the military.

In assessing the probative value of the 2024 VA examiner's opinions, the Board notes that the statements in the later opinions, to the effect that the Veteran denied mental health issues during service, is inconsistent with the original May 2024 opinion wherein the examiner reported that the Veteran shared issues with communicating and interacting with people while in the military.  Further, as noted, she also described such in-service symptoms at the August 2021 Board hearing, as did her spouse.  Although the VA examiner correctly noted that the Veteran was not diagnosed with an acquired psychiatric disorder while on active duty, the Board finds nothing in the examiner's reports or elsewhere in the record to call into question the Veteran's credibility in this regard.

The Board acknowledges that the 2024 VA examiner identified the stress of being a caregiver to her spouse and disabled daughter, and other family issues, as reasons for the Veteran's depression.  However, as noted by the AOJ in an August 2024 Supplemental Statement of the Case (SSOC), she was also concerned with her own health issues.  The 2024 VA examination reports reflect that the Veteran focused on cancer and autoimmune disorder, which are not service-connected disabilities.  That said, her statements more generally reflect concerns with her overall medical health.  As she is service connected for a left shoulder disability, a cervical spine disability, and radiculopathy of both upper extremities, the Board finds that the VA examiner's reports raise the issue of secondary service connection.

Under applicable law, disability which is due to, or the result of, a service-connected disease or injury shall also be service connected.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

Aggravation for purposes of 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of a non-service-connected disability.  Instead, secondary service connection is warranted for "any incremental increase in disability-any additional impairment of earning capacity-in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase-regardless of its permanence."  Ward v. Wilkie, 31 Vet. App. 233, 239 (2019).

As noted, the 2024 VA examiner's opinion, as well as other medical records, reflect that the Veteran's depression was affected by her family situation.  However, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 U.S.C. § 1110 employs only "but-for" (rather than proximate) causation in direct and secondary service connection claims.  The but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction.  The Federal Circuit explained that secondary service connection is warranted where a non-service-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability.  Stated another way, but-for causation is broad and undisputedly broader than proximate cause.  Thus, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

The Board also reiterates that the law mandates resolving reasonable doubt in the Veteran's favor, to include with regard to issues of service origin.  38
 action and inaction.  The Federal Circuit explained that secondary service connection is warranted where a non-service-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability.  Stated another way, but-for causation is broad and undisputedly broader than proximate cause.  Thus, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

The Board also reiterates that the law mandates resolving reasonable doubt in the Veteran's favor, to include with regard to issues of service origin.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the U.S. Court of Appeals for Veterans Claims noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."

Considering the evidence in its totality, the Board is persuaded that there is an approximate balance of evidence regarding whether the Veteran's acquired psychiatric disorder, currently diagnosed as major depressive disorder with anxious distress, developed as a result of active service and/or as secondary to service-connected disability.  The appeal of this issue is granted.

REASONS FOR REMAND

Entitlement to service connection for sleep apnea is remanded.

The evidence of record demonstrates that the Veteran's acquired psychiatric disorder is manifested, in part, by chronic sleep impairment.  However, the evidence also reflects findings of sleep apnea, which is a separate and distinct disability.  As such, although service connection for chronic sleep impairment has effectively been established, the issue of the Veteran's entitlement to service connection for sleep apnea remains on appeal.

In the June 2023 remand, the Board directed that a nexus opinion be obtained with regard to direct service connection for what was then broadly claimed as a sleep disorder.  Although, as noted, opinions were obtained with regard to the Veteran's acquired psychiatric disorder and associated sleep impairment, no specific opinion was procured with respect to sleep apnea.  As such, further development is warranted.

In addition, as noted, information from a VA website reflects that some personnel who were stationed at Fort McClellan may have been exposed to one or more of several hazardous materials, likely at low levels.  On August 10, 2022, the President signed into law the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act of 2022.  See PACT Act of 2022, Pub. L. 117-168, 136 Stat. 1759 (2022).  The PACT Act, among other things, led to the promulgation of 38 U.S.C. § 1168, which requires VA to provide a VA medical examination and opinion to any veteran with confirmed toxic exposure and a current disability.

Here, it does not appear that the development required by the PACT Act has been undertaken as it relates to the Veteran's claim for service connection for sleep apnea.  That needs to be accomplished as well.

This matter is REMANDED for the following action:

1. Prepare and associate with the record a memorandum that assesses whether and to what extent the Veteran participated in toxic exposure risk activity during service, to include during her service at Fort McClellan.

2. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providers who may possess new or additional evidence pertinent to the issue remaining on appeal.  If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the record.  If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified.

3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159.  The evidence obtained, if any, should be associated with the record.

4. After completing the foregoing development to the extent possible, and any other additional development deemed necessary, make arrangements to have the Veteran examined for purposes of assessing the etiology of her sleep apnea.  The examiner should review the record.  All indicated tests should be conducted and the results reported.


  If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified.

3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159.  The evidence obtained, if any, should be associated with the record.

4. After completing the foregoing development to the extent possible, and any other additional development deemed necessary, make arrangements to have the Veteran examined for purposes of assessing the etiology of her sleep apnea.  The examiner should review the record.  All indicated tests should be conducted and the results reported.

After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea had its onset in, or is otherwise attributable to, her period of active service, to include as due in-service exposure to chemicals at Fort McClellan.

In doing so, the examiner should consider the Veteran's testimony pertaining to in-service symptoms of depression and sleep problems while on active duty.  The examiner must also consider (i) the total potential exposure through all applicable military deployments of the Veteran, and (ii) the synergistic, combined effect of all toxic exposures risk activities of the Veteran.

A complete rationale for all medical opinions expressed must be provided.

5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence.  If the benefit sought remains denied, the Veteran and her representative should be issued an ?

SSOC.  An appropriate period of time should be allowed for response.

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	John Kitlas, 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.