Citation Nr: 1754680 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 09-07 148A ) 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, depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to July 1979, and September 1979 to April 1985. This matter comes before the Board of Veterans' Appeals on appeal from a January 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is now with the RO in Atlanta, Georgia. This matter was previously remanded for development in September 2011, July 2014, January 2015, and in August 2015. In February 2016, the Board denied service connection for a personality disorder and remanded the issue of service connection for an acquired psychiatric disorder (previously characterized as depression). In the September 2011 and July 2014 remands, the Board referred the raised issue of clear and unmistakable error in a May 2006 rating decision that denied entitlement to service connection for a right forearm injury. No action was taken on the referred issue. Accordingly, the issue is once again referred to the agency of original jurisdiction. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran's depressive disorder is not attributable to his active service. CONCLUSION OF LAW The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1131, 5103 (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131 (2014); 38 C.F.R. § 3.303 (2017). Generally, the evidence 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has a psychiatric disorder related to service. Service treatment records do not reflect any treatment for or diagnosis of a psychiatric disorder; however, on his separation Report of Medical History, the Veteran reported depression or excessive worry or loss of memory or amnesia. VA medical records reflect diagnosis of and treatment for depression. See January 2006, August 2006, March 2007, and August 2007 VA medical records; see also Social Security Administration (SSA) records. The Veteran underwent a VA examination in October 2011. The examiner diagnosed a personality disorder not otherwise specified, with narcissistic features. The examiner noted that, to the extent that the Veteran was experiencing functional impairment, it seemed most related to the combination of his medical issues and characterological pathology. The examiner found that the Veteran was not exhibiting any genuine Axis I symptoms. However, the examiner noted that he maintained longstanding maladaptive patterns of related to others, characterized by lack of empathy, sense of entitlement, grandiosity and an irrational sense of uniqueness that had interfered grossly with his ability to maintain meaningful relationships across personal and occupational settings. The examiner noted that the Veteran endorsed depression or excessive worry at discharge from active duty, and that he had reported to her that he attended counselling, but that there was no record of it. The examiner concluded that the Veteran was not experiencing depression at the time of the examination. He had denied recent experiences of persistently sad mood or loss of pleasure in previously enjoyed activities. The examiner acknowledged that it was possible that the Veteran had experienced mild depressive symptoms in the past, but that records also revealed that these episodes were specifically linked to situational circumstances, including homelessness and physical pain, and were not reflective of an underlying condition. Above all, the examiner noted, the Veteran had longstanding rigid and maladaptive behavior, consistent with personality disorder, not otherwise specified, with narcissistic features. The examiner found that the Veteran presented as grandiose and entitled, with little sense of empathy. He voiced no responsibility for his behavior, instead blaming the military, his ex-wife, and former employers for his misfortunes. Given his limited distress tolerance and poor coping, he was more prone to depressive symptoms under unfavorable situational circumstances. The examiner noted that personality disorders were developmental in nature (beginning in childhood/adolescence) and not considered to be due to or aggravated by military service. In July 2014, the Board remanded the appeal for an addendum. The Board noted that the October 2011 opinion was inadequate. The Board explained that further explanation was necessary as to whether the Veteran had a diagnosed major depressive disorder, separate from his diagnosed personality disorder. In August 2014, the VA examiner confirmed an earlier diagnosis of personality disorder not otherwise specified with narcissistic features. The examiner stated "the depression that he reported on the report of medical history is linked to the chapter 9 and its consequences/ramifications at that time." It appears that this was in relation to the reported depression, anxiety, and amnesia noted upon his discharge examination. In addition, the examiner stated "this condition was not aggravated by military service, because his condition is developmental in nature." The examiner further explained that "there is no mention of depression linked to military service in the VA treatment notes." In a January 2015 remand, the Board found the August 2014 opinion and rationale to be inadequate. The Board explained that the August 2014 opinion did not adequately explain whether the depression is a separate disability from personality disorder, or part and parcel of personality disorder. The Board obtained another opinion in April 2015. The examiner reviewed the available records, including the claims file. The examiner opined that the Veteran meets criteria for a diagnosis of personality disorder NOS with narcissistic traits and no other mental health condition. She further opined that depression, excessive worry, loss or memory and amnesia are not symptoms of the personality disorder NOS with narcissistic traits. She also explained that the Veteran's depression is related to situational stressors. In an August 2015 remand, the Board sought an addendum opinion as to whether the Veteran's depression is at least as likely as not related to service or post-service events. In September 2015, the examiner opined that the Veteran's depression is more likely than not related to post-service events. The examiner reasoned that the Veteran's depression is linked to situational stressors including homelessness, neuropathy, lack of gainful employment, financial issues, upcoming holidays, unable to see his grandchildren, unable to work, and loss of family. The examiner also noted that there is only one mention of depression on the exit examination and this was related to a Chapter 9. The service treatment records were otherwise essentially silent for complaints of psychiatric illness. The post-service VA treatment records reflect that depression emerged in 2004 or 2005 related to homelessness, with subsequent records indicating depression linked to psychosocial stressors including family conflicts, unemployment, financial issues, neuropathy, etc. In a February 2016 Remand, the Board noted that the Veteran had previously indicated that he was treated for mental depression in 1977 while stationed in Schwabach, Germany, at the U.S. Army Hospital in Nuremberg. In May 2017, pursuant to the Board's February 2016 remand, the RO attempted to obtain records of treatment from this facility. In May 2017 VA correspondence, the RO informed the Veteran of the unsuccessful attempts to obtain medical records from the U.S. Army Hospital in Nuremberg, Germany. The Veteran was afforded another VA medical examination in April 2017 as a result of the February 2016 remand. A new VA examiner diagnosed the Veteran with unspecified depressive disorder and rule-out personality disorder. The examiner opined that Veteran's unspecified depressive disorder is unlikely to be related to military service as service treatment records do not show a consistent pattern of depression or problems related to depression. The examiner opined that the Veteran's current depressive symptoms are more likely than not related to his current stressors of pain. Based on the foregoing, the Board finds that service connection for an acquired psychiatric disorder, to include depressive disorder and depression, is not warranted. The Veteran is currently diagnosed with a depressive disorder, depression, and a personality disorder. The Board previously denied service connection for a personality disorder as a matter of law in a February 2016 decision. See 38 C.F.R. §3.303 (c), 4.9. Board decisions are final when issued. As noted, service treatment records do not establish a diagnosis of a clinical psychiatric disorder in service, to include depressive disorder and depression. Also, the competent and probative evidence weighs against a finding of a nexus between military service and the currently diagnosed psychiatric disorders of depressive disorder and depression. All of the VA examiners have attributed the Veteran's current psychiatric disorders to factors other than military service, such as post-service situational stressors of homelessness, relationship issues, job loss, and health problems. The Board finds the clinical opinions provided by the April 2015, September 2015, and April 2017 VA medical examiners to be highly probative because they have the appropriate training, expertise and knowledge to evaluate the disorders at issue. The examiners are clinical psychologists. Furthermore, the examiners considered the Veteran's statements regarding the nature and history of his condition, to include his report of depression and other symptoms in service. The examiners reviewed the pertinent records and provided thorough rationales for their opinions, which are consistent with the cumulative evidence of record. The Board also notes that there are no contrary, probative medical opinions. Although the Veteran contends that his psychiatric disorders had onset in service, the Board notes that the Veteran has given varying reports of when depression began. See VA August 2006, June 2007, and May 2012 medical records; August 2006 SSA medical records; January 2006 claim. Moreover, his lay statements are not competent evidence to establish etiology. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). His lay statements in this regard clearly fall within the realm of medical expertise. That is, an opinion regarding the nature and etiology of an acquired psychiatric disorder, to include depression and depressive disorder, is a complex medical question for which lay testimony is not competent evidence. The Veteran is not a medical professional and has not demonstrated that he has any specialized medical training which would render him competent to opine on the matter of causal nexus in this case. As such, the Board finds the Veteran's opinion regarding the etiology of his psychiatric disorder(s) is not entitled to probative weight. As there is no competent and credible evidence which establishes that the Veteran's current psychiatric disorders are related to military service, the preponderance of the evidence weighs against the claim. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See 38 U.S.C. § 5107 (2014); 38 C.F.R. §3.102 (2017); Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include depressive disorder, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs