Citation Nr: 1718149 Decision Date: 05/24/17 Archive Date: 06/05/17 DOCKET NO. 12-28 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as residuals of a traumatic brain injury. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Coast Guard from August 2005 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2016, the Veteran testified before the undersigned at a Travel Board hearing held at the RO. A transcript of that hearing is of record. The Board has reviewed the Veteran's electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. In March 2016, the Board granted service connection for traumatic brain injury (TBI) and remanded for further development. The requisite development having been completed, the directives have been substantially complied with as to the issue decided herein and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. An acquired psychiatric disorder, to include as residuals of traumatic brain injury, was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. An acquired psychiatric disorder, to include as residuals of traumatic brain injury, is not secondary (caused or aggravated) to service connected disability. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). A. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA issued a VCAA letter pertinent to the instant claims in April 2010, before the unfavorable adjudication of this issue in January 2011. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify. B. Duty to Assist The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. The Board's remand of March 2016 requested any further private and VA records be associated with the Veteran's claims file; no additional records were found either with VA or from the Veteran. All private treatment records authorized for release or submitted are associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in September, October, and November 2010, July 2015, and again in July 2016. The examinations were adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examination, and conducted thorough medical examinations of the Veteran. The Board finds that the examinations are adequate for evaluation purposes as they considered the Veteran's lay statements of record, the medical evidence of record, and included well-reasoned rationales supporting all opinions provided therein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist is satisfied. II. Service Connection for an Acquired Psychiatric Disorder Legal Criteria for Service Connection Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2016); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran is claiming service connection for a mood disorder, which the RO has recharacterized as an acquired psychiatric disorder, to include the possibility as a residual of TBI. The Veteran is already service connected for TBI, among other disabilities. The Veteran's STRs did not show that the Veteran had any psychiatric complaints. In February 24, 2008, while on active duty with the U.S. Coast Guard, the Veteran was arrested and cited for driving under the influence. As part of the military justice adjudication for this infraction, the Veteran was directed into a program for alcohol abuse operated by Windmoor Healthcare of Clearwater, Florida that included an intensive period from February 26, 2008 to March 3, 2008. During this program, the Veteran was evaluated as having episodes of alcohol abuse and "conflicts with wife," and the comment adjacent to that unsigned statement reads "adjustment reaction with disturbance in mood." This report was passed back to the Coast Guard medical authorities at the time. No further notes in the Veteran's service treatment records exist related to this incident, to include his separation examination in February 2010, prior to his actual separation in March 2010. Both his report of medical history and his actual examination by the physician of the separation physical examination are silent for any mention of a mood disorder or any other psychological issues while on active duty. The psychiatric evaluation was normal and he denied pertinent pathology. The Veteran was injured during service in January 2009 in a fall from the top of a UH-60 Blackhawk helicopter while performing maintenance on the aircraft, and broke his coccyx. The Veteran indicated at the time that he was not sure he suffered a concussion, but he did report headaches about once per week, insomnia, difficulty concentrating, and ringing in both ears. The examining physician noted no psychiatric manifestations at that time, and a mild TBI was diagnosed, for which the Veteran is now service-connected. VA treatment notes from March to September 2010 are silent for any psychiatric issues, to include a mood disorder, except for an August 2010 treatment note where the Veteran was given a PHQ-2 depression screening by a VA registered nurse, where he received a "2," indicating a negative screen for depression. The Veteran received a comprehensive examination by VA in September 2010 for the TBI. A VA audiology examination was provided in October 2010, and a VA psychological consultation and screening was done in November 2010 as part of a larger general compensation and pension examination. During the psychological portion of the examination, the VA psychologist indicated the Veteran and his spouse were being seen on a regular basis for marital therapy and counseling. According to the examiner, the Veteran had been having significant issues with alcohol abuse, and coupled with his unemployment since leaving the service and concomitant financial difficulties, there was significant marital discord as a result. That examiner noted no history of psychiatric treatment nor any history of psychiatric admissions. That examiner noted an axis I of "partner relational problem, alcohol abuse" and gave a GAF score of 70. The examiner made no mention of any linkage between the Veteran's TBI or any other residuals from the fall from the helicopter in 2009, other than the Veteran complaining of back pain, for which he was receiving prescription analgesics. VA treatment notes indicated the Veteran and his spouse received five sessions of couples therapy, from November 2010 to April 2011, at which time the VA psychologist noted under Axis I, "partner relational problem-improved; mood disorder (anxiety) NOS; history of episodic alcohol abuse-improved." Under Axis IV, the examiner noted the Veteran's house was in foreclosure, there were financial difficulties, marital discord, a back injury, and a head injury. A GAF score of 70 was provided. The examiner noted that both the Veteran and his spouse were now working, and their finances and their marital relationship were improving. The examiner's final note from April 2011 was that the couple was terminating the therapy at that time due to improving conditions for the Veteran and his spouse. In July 2016, the Veteran received a VA mental disorders examination. The examiner, a VA psychiatrist, made a diagnosis of no mental disorder. The examiner noted the Veteran's 2010 and 2011 history of alcohol abuse and marital discord, but also remarked the Veteran had not sought or been referred for any mental health services and had not manifested any target symptoms of a DSM-5 mental disorder. The examiner noted the Veteran slept approximately 5 hours nightly, with sleep disrupted by back pain, that the Veteran displayed mild irritability and uneven problems with concentration and short-term memory which did not disrupt his work. The examiner further noted the Veteran had regular weekly tension headaches associated with allergies, weather changes, and stress, which were relieved with over-the-counter medication, and that the Veteran had no evident chronic post-concussion residual conditions. In his observation of the Veteran, the examiner mentioned he was attentive, cooperative, engaging, neatly attired and groomed, and appropriate, with a euthymic affect and mood, along with a positive psychological outlook, despite his chronic back pain. The Veteran's cognitive and intellectual functions were observed to be normal, with adequate insight and good judgment. In the opinion that accompanied the July 2016 examination, the same VA psychiatrist remarked that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that since the Veteran had manifested no psychological symptoms prior to the period after he injured his back in early 2009, and that his mild situational depression and alcohol abuse were resolved prior to discharge, and since he had not manifested any enduring DSM-5 mental disorder since active duty, then it was "reasonably clinically concluded that it is less likely than not the Veteran had any active duty circumstances which have resulted in any interval mental disorder that would require mental health services." In January 2016, the Veteran had a hearing before the undersigned Veterans Law Judge. During question and answer regarding the Veteran's claimed mood disorder, the Veteran indicated in response to a question about problems with work and family, that he gets angry and frustrated easily. The Veteran indicated his problems began in 2009 after he got out of the hospital from the treatment associated with the fall from the helicopter, to include the problems with his wife. The Veteran remarked in response to a question from his representative that he used to have episodes of impaired impulse control, but that he had worked on that in counseling. The Veteran indicated he still thinks he has a mood disorder, and that his relationship with his wife had significantly improved. When asked why the Veteran thought his mood disorder should be service-connected, he responded because he didn't have it before service, and now after the military "all these things are happening to me." Upon review of the evidence of record, the Board concludes that entitlement to direct service connection is not warranted for an acquired psychiatric disorder. With respect to direct service connection, as previously noted, the Veteran's service treatment records did not show that the Veteran had any psychiatric complaints and his February 2010 discharge examination disclosed a normal psychiatric evaluation. In addition, he denied pertinent symptoms. This contemporaneous evidence indicates that an acquired psychiatric disorder was not manifest during service or shortly thereafter and the Board finds this contemporaneous evidence to be highly probative. A September 2010 VA TBI examination and opinion by a VA physician, which included a complete review of the Veteran's service medical records, stated that there were no psychiatric manifestations or other abnormalities observed, to include from the Veteran's January 2009 fall from the helicopter. In July 2016, the Veteran received another VA examination and opinion from a VA psychiatrist that noted the Veteran's alcohol abuse and associated marital discord in service and afterwards as documented in his records. The examiner attributed the claimed mood disorder to situational marital problems complicated by mild alcohol abuse. This VA examiner remarked the Veteran had not sought or been referred to mental health services and has not manifested any target symptoms of a DSM-5 mental disorder. This opinion, provided by a VA psychiatrist, was supported by a valid rationale, as outlined above. The Board finds this negative opinion to be highly probative and to be the most probative evidence of record as to the issue of whether an acquired psychiatric disorder is related to the Veteran's active service. The Board has considered the Veteran's contentions. In this regard, the Veteran has reported in his March 2010 claim and during his January 2016 hearing that he has a mood disorder derived from his military service. When asked about this during his hearing, the Veteran replied that he didn't have the mood disorder before service, but he has it now after his military service, with no other detail or background provided either in his claim or in the hearing testimony. In contrast to the Veteran's statements, his treatment notes from service, to include those related to his January 2009 fall from a helicopter, say nothing about any psychiatric problems. While the Veteran received treatment for alcohol abuse in 2008 and the unidentified counselor mentioned a mood disorder at that time, there is no further mention in the Veteran's service records. From September 2010 through April 2011, the Veteran received marital counseling through VA with his spouse in response to an evaluation that considered the Veteran's alcohol abuse, and that psychologist noted the previous mood disorder, but after those marital counseling sessions ended, there was no further treatment for any psychiatric or mental health issue by VA, and the Veteran has made no assertion of any private treatment for such issues. The Veteran continues to seek VA treatment for his lumbar disc disease and other residuals from his fractured coccyx, as recently as April 2017, but there are no indications of any psychiatric or other mental health issues. These contemporaneous medical records are in contrast to the Veteran's assertion that he has a current mood disorder. The Board finds these contemporaneous records and lack of other evidence to be more probative as to whether any mental health symptoms existed at the time, rather than the Veteran's own reporting. As such, the Board finds the Veteran's assertions in his original claim and during his hearing regarding his mood disorder to be not credible. Additionally, the Veteran's assertions about his mood disorder are in contrast to any continuity of mental health symptomatology during or after his active military service and further damage the credibility of the Veteran's reports as to the onset of such symptoms. As such, the Board finds that entitlement to service connection for an acquired psychiatric disorder is not warranted on a direct basis. The Board additionally finds that entitlement to service connection for an acquired psychiatric disorder is not warranted on a secondary basis. As noted above, the Veteran is service connected for five disabilities. The determinative issue is whether an acquired psychiatric disorder is secondary (caused or aggravated) to these disabilities. As to this issue, as referenced above, a VA opinion was obtained in July 2016, and the examiner opined that since the Veteran "has not manifested any enduring DSM-5 mental disorder since active duty, then it may be reasonably clinically concluded that it is less likely than not that the veteran had any active duty circumstances which have resulted in any . . . mental disorder that would require mental health services." There has been no diagnosed current acquired psychiatric disorder or connection to any possible or related symptoms to the Veteran's service connected TBI or any other service connected disability. The Board finds the negative July 2016 VA opinion to be highly probative and to be the most probative evidence of record as to the issue of whether an acquired psychiatric disorder is secondary (caused or aggravated) to service connected disability. To the extent that the Veteran (or his representative's) statements indicate that an acquired psychiatric disorder is secondary (caused or aggravated) to service connected disability, the Board finds that the Veteran is not competent to address this etiological issue, as this is a complex medical question beyond the competence of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran has not stated that a competent medical professional had stated that such an etiological relationship existed. In other words, there are no Jandreau type exceptions. Overall, the Board finds the negative VA opinion provided by the psychiatrist in July 2016 to be of significantly more probative value than the Veteran's (and other) lay statements as to the issue of whether the an acquired psychiatric disorder is secondary (caused or aggravated) to service connected disability. Additionally, the Board notes that there is no competent opinion contrary to the July 2016 VA opinion and its conclusions. In sum, the Board finds that an acquired psychiatric disorder was not manifest during active service and is not related to active service and that an acquired psychiatric disorder is not secondary (caused or aggravated) to service connected disability. As such, the Board concludes that an acquired psychiatric disorder was not incurred in or aggravated by active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury and to this extent the Veteran's claim must therefore be denied. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs