MAJOR DEPRESSIVE DISORDER

Summary

The veteran, who served from August 1982 to June 1986 and again from August 1988 to January 1990, appeals the denial of service connection for major depressive disorder (MDD), including secondary to his service-connected back and knee conditions. The Board acknowledged the veteran's current MDD and his service-connected lumbar spine arthritis and bilateral knee degenerative joint disease, satisfying the first two elements for secondary service connection. However, the Board focused on the third element: the nexus between the MDD and the service-connected conditions. The veteran reported a traumatic incident in 1990 involving witnessing a violent rape, which he stated contributed to his depression. He also described struggles with alcohol abuse and drug use after his first enlistment, and feelings of low self-worth during his second enlistment. A September 2021 VA mental disorder examination report diagnosed MDD and alcohol use disorder, noting that chronic pain can exacerbate mood but also highlighting the veteran's personal and situational stressors, including substance abuse, as core issues. The VA examiner rendered a negative nexus opinion, stating it was less likely than not that the MDD was the result of his service-connected back and knee conditions, viewing the veteran's issues as independent of the chronic pain. A March 2022 private medical opinion from an internal medicine doctor concluded it was more likely than not that the MDD was a direct result of the service-connected disabilities. The Board found this private opinion unpersuasive, citing its use of an incorrect legal standard ('more likely than not' instead of the correct standard for nexus), the physician's lack of expertise in mental disorders compared to the VA psychologist, and the failure to address the veteran's history of substance abuse and personal stressors. The Board gave significant probative value to the VA examiner's report. Ultimately, the Board found the evidence persuasively against a service connection for MDD, concluding the nexus element was not satisfied and denying the claim.

Rationale

No evidence of mental health issues during service.; Veteran's MDD claimed as secondary to service-connected back and knee pain.; VA examiner provided negative nexus opinion; private opinion found unpersuasive by Board.; Board found VA examiner more credible due to expertise and addressing veteran's history.

Full Decision Text

Citation Nr: A25043023
Decision Date: 05/13/25	Archive Date: 05/13/25

DOCKET NO. 220328-231250
DATE: May 13, 2025

ORDER

Entitlement to service connection for depression or major depressive disorder (MDD), including secondary to knee and back pain, is denied. 

FINDING OF FACT

The persuasive weight of the evidence weighs against a finding that the Veteran's MDD is causally related to his active-duty service. 

CONCLUSION OF LAW

The criteria for service connection for MDD have not been met. 38 U.S.C. §§ 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 from August 1982 until June 1986 and August 1988 to January 1990. 

This matter comes before the Board of Veterans' Appeals (Board) from an October 2021 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ), which addressed the Veteran's claim as a supplemental review and denied service connection for MDD. In March 2022, the Veteran filed a timely VA Form 10182, Notice of Disagreement (NOD) requesting the evidence submission docket. 

Therefore, the Board may only consider the evidence of record at the time of the October 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that the Veteran submitted a Higher-Level Review request in May 2021. A duty to assist error was identified and the claim returned for further development.  To consider the additional evidence after the development, the AOJ converted the HLR to a supplemental review, as noted above, and rendered the October 2021 decision denying service connection for MDD.  The Board additionally notes that the Veteran has other pending claims for additional psychiatric disorders. 

Entitlement to service connection for MDD is denied. 

Service connection may be granted for 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). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish
 occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau, 492 F.3d at 1377.  Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay testimony is not competent to determine the extent or etiology of  matters which require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

The claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a).  The VA shall consider all information, including lay and medical evidence of record.  VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) 

The Board will consider if the criteria for service connection have been met:

At the outset, the Board notes that there is no evidence in the Veteran's service treatment records to indicate he had any mental health issues during either period of active duty. The Veteran contended that his mental health condition was the result of pain from his service connected back and knee conditions. The October 2021 rating decision conceded the Veteran has a current disability of depression.  The rating decision also conceded the Veteran is service connected for lumbar spine arthritis and bilateral knee degenerative joint disease. Thus, the second element of service connection on a secondary basis, an inservice injury, has been satisfied. The Board is bound by these favorable findings. 38 C.F.R. § 3.104. Thus, the Board finds the first and second elements of service connection for MDD secondary to back and knee conditions are satisfied. 

The third element of service connection on a secondary basis is a nexus between depression and the back and knee conditions.  In October 2020, the Veteran reported a military trauma to his provider. He stated the trauma was that he witnessed a rape by a group of military soldiers off post at a park while he was stationed at Fort Stewart. The victim was not a soldier, and the Veteran described the assault as violent and inhumane.  He noted that one man had a pit bull which he forced on the woman. He stated he did not participate in the assault but never called 911 or reported the rape. The Veteran explained he was drunk when he saw the rape and that the rape was also drug related. The Veteran did not explain how he knew or why he suspected the rape was drug related.
 nexus between depression and the back and knee conditions.  In October 2020, the Veteran reported a military trauma to his provider. He stated the trauma was that he witnessed a rape by a group of military soldiers off post at a park while he was stationed at Fort Stewart. The victim was not a soldier, and the Veteran described the assault as violent and inhumane.  He noted that one man had a pit bull which he forced on the woman. He stated he did not participate in the assault but never called 911 or reported the rape. The Veteran explained he was drunk when he saw the rape and that the rape was also drug related. The Veteran did not explain how he knew or why he suspected the rape was drug related. He further advised the provider that he always remembered the incident and the memory has become more often and vivid in last couple of years.

The September 2021 VA mental disorder disability examination report noted the Veteran had one moderate episode of MDD. The second diagnosis was alcohol use disorder, severe, in sustained remission. The opinion noted that chronic pain can interfere with sleep and exacerbate depression.   

During the examination the Veteran reported that while in the military, he was a heavy equipment operator "which escalated everything" in his body. He stated that he did not feel good about himself, and his self-image was destroyed, and he has been destroyed trying to get his life back together. He acknowledged that drinking was not productive. 

The Board notes that during the Veteran's first period of active duty, he was a sentry guarding the tomb of the unknown soldier and was honorably discharged from this period of service. The Veteran noted that after he separated from the first term of service, he got involved with people who were not on a good path. The Veteran advised the examiner that he had been trying to change his mood his entire life and began to abuse alcohol after his first separation from service and also began one quarter gram of cocaine on the weekends.  He determined the only way to save himself was to go back into the military to return to his former discipline.  

Approximately two years after completing his first term of service, the Veteran re-enlisted. During the Veteran's second period of service, he tested positive for cocaine on two occasions and was discharged from service after 16 months. After service, the Veteran was a mail clerk and then a paralegal in a patent trade office.  The Veteran advised the examiner that he has been sober since 1990. The examiner diagnosed depressed mood, anxiety and disturbances of motivation and mood, passive suicidal ideation without intent or plan. 

The VA examiner noted that the Veteran advised an October 2020 VA counselor that the pain in his back and knees prevented him from having a physical relationship with his wife.  He was also experiencing restlessness and nightmares which caused anxiety and depression. The examiner also noted the October 2020 provider note wherein the Veteran described watching a rape of a woman by several soldiers without calling 911.

The September 2021 VA examiner rendered a negative nexus opinion that it was less likely than not that the Veteran's depressive disorder with anxiety was the result of his service connected back and knee condition. The examiner noted that chronic pain can impact/exacerbate mood. However, Veteran has struggled with situational peer/relationship stressors over time. For example, the Veteran said he  enlisted the first time "to get out of the way I was living...."  He did well during his first period of service but after his discharge, he started drinking and continued alcohol abuse and started using drugs. He related that during his second enlistment he did not feel good about himself, and his self-image was destroyed. He said he felt this way due to "drinking, not being productive, and not going in the    direction of what a man should be." The psychologist viewed these issues as core issues that would be present with or without chronic pain. 

In March 2022, the Veteran submitted a statement from an internal medicine doctor opining that the Veteran's mild to severe depression was from service-connected issues. The physician further stated that it is known that MDD is generally diagnosed when there is a persistent low mood and lack of interest in activity with  impairment in functional areas of life. The physician concluded that it was more likely than not the Veteran's MDD was a direct result of his service-connected disabilities. 

The Board first notes that "more likely than not" is not the appropriate standard to assess whether the nexus element of service connection has been satisfied.  Secondly, as this physician is not a psychologist or psychiatrist, the Board finds the VA examiner, a psychologist, to have a significantly higher level of credibility and competency  with regard to an assessment of mental disorders. Third, the private doctor based the nexus opinion on medical literature and professional experience. While pertinent, the VA Schedule for rating disabilities requires the analysis to be based on the Diagnostic Statistical
 low mood and lack of interest in activity with  impairment in functional areas of life. The physician concluded that it was more likely than not the Veteran's MDD was a direct result of his service-connected disabilities. 

The Board first notes that "more likely than not" is not the appropriate standard to assess whether the nexus element of service connection has been satisfied.  Secondly, as this physician is not a psychologist or psychiatrist, the Board finds the VA examiner, a psychologist, to have a significantly higher level of credibility and competency  with regard to an assessment of mental disorders. Third, the private doctor based the nexus opinion on medical literature and professional experience. While pertinent, the VA Schedule for rating disabilities requires the analysis to be based on the Diagnostic Statistical Manual, fifth edition (DSM V).  Fourth, the physician did not address the Veteran's military service history and the history of the Veteran's drug and alcohol abuse which began after his first term of service and continued into his second term of service. For these reasons, the Board finds the private nexus opinion to have no probative value or evidentiary weight and the VA examination report to have significant probative value and evidentiary weight. 

The Board finds the third element of service connection for depression, the nexus element, is not satisfied. As such, service connection for depression is not warranted.  The persuasive weight of the evidence is against a finding that the Veteran incurred depression in service or secondary to back and knee pain. 

As the evidence is persuasively against the Veteran's claim, it is not in approximate balance; the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. Polk

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.