Citation Nr: 18147036 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 09-12 936 DATE: November 2, 2018 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT An acquired psychiatric disability is not shown to have been diagnosed either in service or within a year of service discharge; and the evidence fails to establish that the Veteran’s currently diagnosed depressive disorder is etiologically related to his active service, due to head trauma experienced during active service, caused by his service-connected headaches, or aggravated by his service-connected headaches. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder on a direct and secondary basis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from January 1988 to April 1994. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2012. A transcript of that hearing is of record. In August 2017, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In April 2018, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). The premise of the JMR appears to be that the Board referred to the VA examiner who authored opinions in 2013 and 2014 as the 2013 examiner. However, the JMR did not identify any specific error in reasoning of the Board, requesting only greater precision in identifying the medical evidence being referred to. The Board will endeavor to clarify any misunderstanding, but also notes that the Veteran has not submitted any evidence to support his service connection for an acquired psychiatric disability claim since the Board denied the claim in 2017. 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. §§ 1110, 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran filed a service connection claim for depression in August 2007, which was denied by a December 2007 rating decision. He filed a service connection claim for PTSD in August 2009, which was denied by a September 2009 rating decision. The Veteran contends that his acquired psychiatric disorder is either due to head trauma experienced during active service and/or secondary to his service-connected headaches. STRs show that in March 1988, the Veteran denied having depression or excessive worry. He also had a normal psychiatric evaluation. In April 1990, he experienced a head injury that resulted in his developing a headache disability that has since been service connected. In April 1992, he continued to deny having depression or excess worry. He also denied receiving any mental health counseling. Finally, in April 1994, he once again denied having any nervousness. The record does not contain any psychiatric complaints, treatment, or diagnosis until May 2005, more than a decade after his separation from service. In May 2005, he was diagnosed with depression. However, in July 2005, he denied having depression, but his physician noted that he appeared to have depressive symptoms. He was diagnosed with depression again in August 2005. In May 2008, the Veteran was granted Social Security Administration (SSA) disability benefits for an acquired psychiatric disorder. However, SSA records do address the etiology of his acquired psychiatric disorder, which is the critical question to be answered in this case, as service connection requires the disability to have either began during or was otherwise been caused by the Veteran’s military service, or be caused or aggravated by a service connected disability. In October 2007, the Veteran was afforded a VA examination for his acquired psychiatric disorder. He reported having been depressed for at least 10 years and that he became depressed after the military because he did not want to get out. He was involved in a motor vehicle accident in 1992 in which his nephew died. The examiner diagnosed the Veteran with depressive disorder, but noted that the depressive symptoms were really fairly mild. The examiner reported that the Veteran had also experienced significant problems with alcohol abuse for a number of years. The examiner believed the Veteran also would meet the criteria for alcohol abuse disorder. The examiner reported that there was no evidence that the Veteran’s depression was specifically related to his headaches, although the examiner “thought” that his headaches might contribute to his depression. The examiner reported he had no way of apportioning the amount his headaches contributed to his depression without resorting to mere speculation. At an April 2012 VA examination for his headache disability, the examiner noted that the Veteran’s depression contributed to his headaches. In April 2013, the Veteran was also afforded a VA examination for his acquired psychiatric disorder. However, in December 2013, the Board found that a remand was required necessary in order to address questions that the Board found to have been unanswered by the April 2013 VA examination report. In April 2014, the April 2013 VA examiner reviewed the Veteran’s claims file. The examiner found that the Veteran met the criteria for major depressive disorder. However, the VA examiner opined that the Veteran’s depression was less likely than not due to his active service or due to head trauma experienced in service. The examiner noted that the earliest post-service treatment records in 1997 to 1998 do not show any mental health symptoms or depression. The examiner reported that treatment records from 2005 show that the Veteran reported alcohol abuse and some depressive symptoms with no prior treatment. The examiner also opined that the Veteran’s depression was not aggravated by his service-connected headache disability. The examiner observed that the Veteran had experienced family losses, was arrested for battery and for driving under the influence, and had relationship stressors, which were more pronounced issues than his headaches. Regarding PTSD, based upon the evidence of record, the Board finds that the weight of the evidence fails to support the conclusion that the Veteran met the DSM criteria for a diagnosis of PTSD at any time during the appeal period. See Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Veteran was clinically examined to specifically determine whether he had PTSD. However, after reviewing the claims file, the VA examiner found in April 2014 that the diagnostic criteria to support a PTSD diagnosis had not been met. The examiner is shown to have conducted a thorough examination, to have reviewed and considered the pertinent evidence of record, and to have provided adequate rationale for her April 2014 opinions. The Veteran’s reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Without a diagnosis of PTSD, the Veteran fails to meet the requirements of service connection set out under 38 C.F.R. § 3.304(f). Service connection for PTSD is denied. Regarding depressive disorder, after weighing all the evidence, the Board finds great probative value in the VA examiner’s April 2014 opinions. The VA examiner’s negative opinions are 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, including the Veteran’s assertion that his depressive disorder was due to his head injury experienced in service or secondary to his service connected headaches. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). As such, service connection on a secondary basis or based on aggravation is not warranted. Consideration has been given to the Veteran’s personal assertion that his depressive disorder was the result of his head injury experienced during active service and/or secondary to his service-connected headaches. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of an acquired psychiatric disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The etiology of an acquired psychiatric disorder is not the type of question that is readily amenable to mere lay diagnosis, as the evidence shows that examinations, which may include mental status examinations, are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report depression, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to whether his head trauma experienced during active service caused his depression or whether a headache disability caused or aggravated an acquired psychiatric disorder. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating head injuries or evaluating acquired psychiatric disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the Veteran’s assertions do not constitute competent medical evidence. Moreover, even to the extent that depression was felt to have been aggravated by his service connected headaches, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation. 38 C.F.R. § 3.310. While the October 2007 VA examiner “thought” that the Veteran’s headaches might contribute to his depression, the April 2014 VA examiner reexamined the question but opined that the Veteran’s headaches less likely than not caused or aggravated the Veteran’s depressive disorder. In addition, even if the Veteran’s depression was aggravated by his service connected headaches, no baseline level of severity has been identified. Regarding alcohol abuse disorder, the service connection entitlement statutes set forth in 38 U.S.C. § 1110 reads, “No compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.” The regulatory provisions of 38 C.F.R. § 3.301 address line of duty and misconduct determinations. Under 38 C.F.R. § 3.301(a), direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See also 38 C.F.R. § 3.1(m). The provisions of 38 C.F.R. § 3.301(d), which specifically address line of duty determinations with respect to abuse of alcohol or drugs, state as follows: Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. The controlling precedential authority makes clear that direct service connection may not be granted for a disability that arises from a veteran’s abuse of alcohol or drugs. Allen v. Principi, 237 F.3d. 1368 (Fed. Cir. 2001). As described, the medical evidence of record fails to associate the Veteran’s alcohol abuse problems with his service-connected disabilities, a headache disability or residuals from a forehead scar. To the extent that the Veteran has alleged that such is the case, he lacks the medical training to be considered competent to provide such an opinion. See Jandreau, 492 F. 3d 1372. Accordingly, because the Veteran’s alcohol abuse disorder is not caused by or secondary to a service connected disability, it must be denied. As noted, the parties to the JMR remanded the claim to the Board for a better statement of reasons for its findings. It is noted that the Board previously remanded the Veteran’s claim in December 2013 in order to obtain an opinion regarding service connection on a direct and secondary basis. In April 2014, the VA examiner provided the requested opinions. As discussed above, the Board finds that the Veteran does not meet the DSM criteria for a diagnosis of PTSD at any time during the appeal period. The Board also finds that the Veteran’s depressive disorder was less likely than not due to his active service or caused or aggravated by a service connected disability. It is noted that the JMR did not identify any problems with the 2014 addendum opinion to include either its findings or rationales. Moreover, no medical evidence of record was submitted since the 2017 Board decision to refute the conclusions of the 2014 addendum medical opinion which stands as the most well-reasoned and probative medical evidence of record in this case. In summary, as the evidence is against the claim, service connection for an acquired psychiatric disability is not warranted either on a direct or secondary basis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel