Citation Nr: 1752002 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-08 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depressive disorder. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from March 1976 to October 1984. This case 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) in Atlanta, Georgia. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2016. A transcript of that hearing is of record. In June 2017, the Board remanded the Veteran's claim for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). The issue of service connection for tinnitus has been raised by the record in an October 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT An acquired psychiatric disorder other than PTSD was not shown to have been diagnosed in service; and the evidence fails to establish that the Veteran's currently diagnosed depressive disorder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a hearing before the Board in January 2016. The Veteran was also provided a VA examination and neither the Veteran, nor his representative, has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. §§ 4.125, 4.126. An interim final rule was issued on August 4, 2014, that replaced the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) with the DSM-V. However, the provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Jurisdiction over the present appeal was first conferred to the Board in March 2013. In October 2011, the Veteran filed a service connection claim for PTSD, which was denied by a May 2012 rating decision. In April 2016, the Board denied service connection for PTSD, but remanded the service connection claim for an acquired psychiatric disorder other than PTSD for further development. He asserted that his acquired psychiatric disorder was due to his active service. At the Board hearing, the Veteran testified that he witnessed an event in service and heard about another event but did not witness it. He reported that he treated for alcohol abuse during his active service. The Veteran's wife testified she met the Veteran in 1993, which is almost a decade after his separation from service. The Veteran's STRs do not show any complaints, symptoms, treatment, or diagnosis for an acquired psychiatric disorder. In March 1976, June 1981, and September 1984, he had normal psychiatric examinations and specifically denied having any psychiatric symptoms. While the Veteran treated for alcohol abuse from April 1984 to June 1984, his STRs show no complaints, symptoms, or diagnosis for an acquired psychiatric disorder. The Veteran's medical records show the first evidence of an acquired psychiatric disorder is not until 2011, more than two decades after his separation from service. His treatment records show he had a positive PTSD screen and was referred for evaluation. He was diagnosed with depression and insomnia. In August 2017, the Veteran was afforded a VA examination. He reported that he experienced stress during his active service and drank heavily. He also denied receiving any current mental health treatment. The examiner had the opportunity to review the Veteran's claims file, interview the Veteran, and conduct an examination. The examiner diagnosed the Veteran with depressive disorder. The examiner opined that the Veteran's depressive disorder was less likely than not incurred in or caused by the Veteran's active service. The examiner reported that the claims file contained no evidence that the Veteran's depressive disorder was related to his active service. The examiner reported that there were no reports of mental illness during his active service and no consistent reports of ongoing mental health problems since his active service. The examiner concluded that there was no nexus between his active service and his current symptoms. The Veteran has not submitted any medical evidence supporting his contention that his depressive disorder was due to or the result of his active service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. Unfortunately, the VA examiner opined that the Veteran's depressive disorder was less likely than not due to his active service. The Board finds great probative value in the VA examiner's opinion. This negative opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Based upon the evidence of record, the Board finds there is no evidence that an acquired psychiatric disorder, to include depressive disorder, had its onset in service or within a year of service discharge or is otherwise etiologically related to service. The record contains no evidence of any mental health symptoms in service, at discharge, and after his separation from service for more than two decades thereafter. There is also no competent medical opinion of record which even suggests that the Veteran's depressive disorder might be the result of his active service. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of an acquired psychiatric disorder. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with a psychiatric disorder. Therefore, while the Veteran disagrees with the conclusion that his acquired psychiatric disorder neither began during, nor was otherwise caused by, his active service, he is not considered competent (meaning medical qualified) to address the etiology of his acquired psychiatric disorder. As such, his opinion is insufficient to provide the requisite nexus. As described, the criteria for service connection have not been met for an acquired psychiatric disorder other than PTSD. Therefore, the claim is denied. ORDER Service connection for an acquired psychiatric disorder other than PTSD is denied ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs