Citation Nr: 18132210
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-04 974
DATE:	September 6, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to service-connected degenerative arthritis of the cervical spine, is granted.
FINDING OF FACT
Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed mood disorder with major depressive features is caused by his service-connected degenerative arthritis of the cervical spine.
CONCLUSION OF LAW
The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to service-connected degenerative arthritis of the cervical spine, have been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the U.S. Army from October 1980 to February 1981 and from May 1984 to March 1987.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
Although the issue certified to the Board was for depression, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized as reflected above to comport with the record.
The Veteran was previously represented by John Worman, attorney.  The record shows that in July 2017 the Veteran executed a VA Form 21-22a in favor of J. Michael Woods, attorney.  The Board recognizes this change in representation.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
Given the Board’s favorable decision in granting service connection for an acquired psychiatric disorder, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished.
Service Connection
1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, and to include as secondary to service-connected degenerative arthritis of the cervical spine
The Veteran contends that his current psychiatric problems developed due to the pain and functional limitations he experiences from his service-connected degenerative arthritis of the cervical spine.  
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
The question before the Board is whether the Veteran has a current psychiatric disorder that is etiologically related to his active duty service, or his service-connected degenerative arthritis of the cervical spine.  Based on a careful review of the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s currently diagnosed mood disorder due to medical condition with major depressive features is caused by his service-connected degenerative arthritis of the cervical spine.  
At the outset, the Board finds that the evidence does not show, and the Veteran does not contend, that his current psychiatric disorder had its onset during active duty service.  A review of his service treatment records shows no findings for any complaints, treatment, or diagnosis for any mental health disorder.  The first documented post-service treatment record for any mental health problems was in 2009, more than 25 years after his separation.  Finally, the Veteran has not presented any evidence that his current psychiatric disorder is etiologically related to his active duty service.  Therefore, the Board finds that service connection for a psychiatric disorder is not warranted on a direct basis.  
Regarding whether service connection on a secondary basis is warranted, the record includes conflicting medical opinions.  With regard to the medical opinions obtained, as with all types of evidence, it is the Board’s responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).
In October 2012, the Veteran underwent a private psychological evaluation by a board-certified psychologist, Dr. A.F., who had access to and reviewed the Veteran’s claims file and VA medical records.  Following an interview of the Veteran, a review of his claims file, and a mental status examination to assess his current symptomatology, Dr. A.F. diagnosed the Veteran with mood disorder due to medical condition with major depressive features, polysubstance dependence, in remission, and tobacco dependence.  Dr A.F. concluded that the Veteran’s mood disorder due to medical condition with major depressive features was “at least as likely as not connected to his service-connected degenerative spine condition.”  In making that conclusion, Dr. A.F. found that the Veteran’s cervical spine disability, and the resulting functional limitations, had gradually affected the Veteran’s mood, energy, motivation, social interest and general sense of well-being.  
By contrast, a December 2015 VA examiner found that the Veteran’s only mental health diagnosis was cocaine use disorder, in remission.  Moreover, the December 2015 VA examiner found no evidence to support that the Veteran’s mental health symptoms were related to a service-connected disability.  However, the December 2015 VA examiner did not discuss Dr. A.F.’s October 2012 private evaluation or the 2009, 2012 and 2013 VA treatment records documenting diagnoses for depression, adjustment disorder with depressed mood and mood disorder.  
Because the December 2015 VA examiner failed to discuss the Veteran’s other mental health diagnoses, the Board finds that the December 2015 VA opinion has less probative value than the October 2012 private opinion.  Because Dr. A.F.’s opinion took into consideration the Veteran’s reported symptomatology, his complete medical history, and it was based on a thoroughly reasoned analysis, the Board finds that this opinion is more persuasive concerning the diagnosis of his current mood disorder and its etiology.  
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Resolving all reasonable doubt in favor of the Veteran, and taking into consideration the findings of the October 2012 private evaluation and the Veteran’s competent and credible lay statements regarding his mental health symptomatology, the Board finds that the evidence is at least in equipoise that his current mood disorder due to medical condition with major depressive features was caused by his service-connected degenerative arthritis of the cervical spine.  Therefore, the Veteran’s service connection claim for an acquired psychiatric disorder must be granted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Journet Shaw 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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