Citation Nr: 1800743 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-11 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to May 1977, with additional service with the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter was previously remanded by the Board in January 2016 for additional evidentiary development. FINDINGS OF FACT Unspecified depressive disorder was not manifest in service and is unrelated to service or any period of ACDUTRA. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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 -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran's diagnosed psychiatric disorder, unspecified depressive disorder, is not a "chronic" disease under the provisions of 38 C.F.R. § 3.309, and there is no evidence that he has been diagnosed with a psychosis. As a result, the provisions of 38 C.F.R. § 3.303 (b) are not applicable. In the context of the Veteran's time in the Reserves, the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. The Veteran asserts that his current psychiatric disorder is the direct result of service and his time in the Reserves. In a July 2012 translated statement, the Veteran reported that he has been anxious and depressed since his active service in the 1970's and during his period in the Reserves. Specific to his time in the Reserves, the Veteran reported that he was on "standby" to go into the Gulf War, and as a result, experienced nightmares and significant tension. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of a psychiatric disorder. The Veteran's April 1974 entrance examination documents a normal physiatric evaluation. The April 1977 separation examination also reveals a normal psychiatric examination and the Veteran specifically denied depression or excessive worry, nervous trouble of any sort, or frequent trouble sleeping in a report of medical history. A review of treatment records during the Veteran's time in the Reserves reveals April 1981, August 1984, August 1988 and May 1992 reports of medical history in which the Veteran specifically denied depression or excessive worry, nervous trouble of any sort, or frequent trouble sleeping. Physical examinations in April 1981, August 1984, August 1988 and May 1992 revealed normal psychiatric evaluations. The latter examination followed the 1990-1991 deployments to in Southwest Asia for Operations Desert Shield and Desert Storm. Service personnel records include performance evaluations through 1997 that show uniformly satisfactory performance with multiple letters of commendation throughout the 1990s. The Veteran retired from military service at age 60 in December 1997. As noted, the Veteran was diagnosed with unspecified depressive disorder at a February 2016 VA examination. After a review of the claims file and an examination of the Veteran, the examiner concluded that the Veteran's depressive disorder was less likely than not related to his active duty service and his time in the Reserves. The examiner explained that service treatment records did not document any relevant findings, symptoms, diagnoses, or treatment during either his active duty service or Reserves training. The Veteran did not begin psychiatric treatment until November 2011, 34 years after separation from active duty and 16 years after leaving the Reserves. The examiner reported that there was no evidence of mental health treatment or continuity of symptoms prior to 2011. The Board accepts the February 2016 VA medical opinion that the Veteran's depressive disorder is less likely than not related to his active service and time in the Reserves as highly probative medical evidence on this point. The examiner rendered his opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). As noted, the medical evidence of record shows that the Veteran first sought psychiatric treatment in November 2011. Records of VA outpatient mental health care are substantially silent for any reference to active duty or Reserve military experiences. Clinicians noted that the Veteran's symptoms were associated with financial stressors, inability to find full time employment, and difficulties adjusting to retirement from the Reserves in the past decade. The Board acknowledges the Veteran's statements that he has experienced depression, anxiety, and other psychiatric symptoms since his active service and time in the Reserves. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). However, in addition to the lack of relevant treatment records, the Veteran specifically denied any relevant symptoms upon separation from active service and multiple times while in the Reserves. This includes a May 1992 report of medical history, seemingly contradicting the Veteran's report with respect to anxiety over being called into active service in the Gulf War. As a result of the Veteran's own contemporaneous denials of relevant symptoms, the Board finds the Veteran's current statements regarding symptomatology to be of limited credibility. Such remote statements are inconsistent with the service records and are not credible. Here, there is no reliable evidence that he had symptoms of depressive disorder during service or in proximity to service. To the extent that the Veteran has asserted his depressive disorder is directly related to his military service, the Board finds that the probative value of the general lay assertions are outweighed by the medical evidence of record which does not show any pathology, disease, residuals of injury or diagnosis of depressive disorder in active service, the Reserves, or for many years after discharge. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran has asserted a continuity since service, the Board again notes that the provisions of 38 C.F.R. § 3.303 (b) are not applicable. No competent medical opinions linking the Veteran's depressive disorder to service have been presented. The VA examiner considered the Veteran's lay assertions, but ultimately found that the Veteran's depressive disorder was not related to his active service or time in the reserves. The Board finds that the Veteran's lay statements are outweighed by the VA examiner's medical opinion as it was based on consideration of the Veteran's contentions, reviews of medical records, and medical expertise. In addition, the Veteran's assertions contradict contemporary medical evidence, including psychiatric evaluations during active service and time in the Reserves, and the Veteran's own self-reported medical history during this time period. The Board finds that the preponderance of the evidence is against a finding that the Veteran's currently diagnosed depressive disorder is directly related to service and the claim must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs