Citation Nr: 18147419 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 09-45 672 DATE: November 6, 2018 ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder and/or anxiety disorder is reopened; to this extent only, the claim is granted. Entitlement to service connection for an adjustment disorder is denied. Entitlement to service connection for a left shoulder condition is denied. Entitlement to service connection for residuals of a head injury is denied. FINDINGS OF FACT 1. Evidence received since the final June 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating such claim. 2. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder that is attributable to a disease or injury in service. 3. The competent medical evidence demonstrates that the Veteran does not currently have a left shoulder condition and has not had one during the pendency of the appeal or recent to the filing of the claim. 4. The competent medical evidence does not demonstrate that the Veteran has a residual condition that is attributable to his active service or any incident of service, to include a purported in-service head injury. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. However, the criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to November 1980. These matters were last before the Board in December 2014, whereupon they were remanded to the Regional Office in order to attempt to schedule the Veteran for a hearing before a Veterans Law Judge. The Veteran was notified of his right to be afforded a hearing via correspondence mailed in February 2015 to his listed address as well as an address obtained through an alternative source, but he did not reply to said correspondence. Thereafter, in an October 2017 correspondence, the Veteran’s representative informed VA that the Veteran was located at a different address; subsequently, a new correspondence was mailed to the Veteran at this address which informed him that a hearing had been scheduled for him on August 7, 2018, to testify before a Veterans Law Judge. No response was received, and the Veteran did not appear at the scheduled hearing. Following his failure to appear, the case was certified to the Board for its adjudication. The Board finds that VA has satisfied its duty to assist in this matter, as the Veteran was mailed correspondence at multiple known addresses in various attempts to afford him an opportunity to testify before a Veterans Law Judge as he requested on his November 2009 formal appeal on VA Form 9. 38 U.S.C. § 5103(a). The Veteran has not informed VA that he moved, and has not provided VA with any explanation as to why he did not appear for the scheduled hearing in August 2018. Wood v. Derwinski, 1 Vet. App. 190 (1991). Under these circumstances, the Board finds that VA has taken every step at its disposal to afford the Veteran a hearing, and, as such, concludes that he will not be prejudiced if its proceeds with an adjudication of these matters. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of service connection for an adjustment disorder with anxiety and panic attacks as one for an acquired psychiatric disorder, to include an adjustment disorder and/or an anxiety disorder. Reopening the Acquired Psychiatric Disorder Claim The RO denied the Veteran’s claim of entitlement to service connection for an adjustment disorder in a June 2006 rating decision. In support thereof, the Regional Office stated that there was no evidence that the condition was related to service. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the June 2006 rating decision became final by operation of law, except that the claim may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. Since the June 2006 decision, the Veteran has asserted that he was treated for depression while in service, which is somewhat corroborated by the fact that he reported a history of depression on his September 1980 Report of Medical History that accompanied his separation examination. On this basis, the Veteran was afforded a VA examination in December 2013 to evaluate the nature and likely etiology of his acquired psychiatric disorder, the results of which are discussed below. In any event, this new evidence raises the possibility that his acquired psychiatric disorder was incurred in service or is otherwise attributable to service, thus satisfying the low threshold necessary to reopen the claim of service connection. Accordingly, for the limited purpose of reopening the claim of service connection for an acquired psychiatric disorder the Veteran’s request is granted; the issue of entitlement to service connection for an acquired psychiatric disorder is addressed below. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he developed an acquired psychiatric disorder in service and that he has continued to experience symptoms of the condition ever since his discharge from service. In the alternative, he contends that he developed an acquired psychiatric disorder after his discharge from service and that the condition is attributable to his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran is currently diagnosed with an acquired psychiatric disorder, specifically an adjustment disorder with anxiety and panic attacks, the preponderance of the evidence weighs against finding that the Veteran’s acquired psychiatric disorder is related to an in-service injury, event, or disease, to include the gastroenteritis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of service medical records does not show any diagnoses of or treatment for an acquired psychiatric disorder. The Board does acknowledge that the Veteran reported a history of experiencing depression on his September 1980 Report of Medical History; however, the evaluating physician did not provide any further elaboration regarding the Veteran’s reporting of a history of experiencing depression in service. Furthermore, no abnormalities were noted on the corresponding September 1980 discharge examination, to specifically include any psychiatric issues. Post-service, the Veteran has submitted medical records pertaining to his period of incarceration in 1995 and 1996 which show that he received psychiatric treatment during this time. Beginning with a September 1995 consultation wherein he was diagnosed with an adjustment disorder with anxiety and panic attacks, medical records reflect that the Veteran received regular treatment through to 1996 when the treatment ceased after it was determined that he did not require any further treatment. The Board notes that during the September 1995 consultation the Veteran reported that he was seeking counseling for situational depression and took medication primarily due to stressors of incarceration. The Veteran was afforded a VA examination to evaluate the nature and likely etiology of his acquired psychiatric disorder in December 2013. After reviewing the Veteran’s history of psychiatric treatment, to include his treatment during his period of incarceration as well as intermittent treatment thereafter, the examiner diagnosed him with an anxiety disorder, not otherwise specified. The examiner then opined that it was less likely than not that the Veteran developed an acquired psychiatric disorder in service or that his currently diagnosed acquired psychiatric disorder was otherwise attributable to service. In support thereof, the examiner noted that the Veteran was never diagnosed with a psychiatric disorder while in service, nor did he seek any treatment for any such disorder. The examiner acknowledged the Veteran’s history of intermittent mental health treatment after service, but found that this treatment coincided with symptoms that were situationally based and did not reflect a chronic disorder that was attributable to service, to include the isolated self-report of experiencing depression and anxiety in service. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for an acquired psychiatric disorder. There is no competent evidence that the Veteran was ever diagnosed with or sought treatment for a psychiatric disorder while in service, and although he did report a history of experiencing depression on the September 1980 Report of Medical History, as the December 2013 VA examiner determined, this was an isolated complaint that was never substantiated by a physician. The Board acknowledges that the Veteran is competent to report having experienced symptoms of depression and anxiety in service and ever since service; however, he is not competent to provide a diagnosis in this case or to determine that these symptoms were manifestations of the acquired psychiatric disorder for which he is now receiving treatment. The determination of whether lay-observable symptoms constitute a diagnosis, or the date of the onset of that diagnosis, is a complex medical question that is the province of trained and credentialed medical providers. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran’s contentions must be considered in light of the December 2013 VA examiner’s opinion, who found that it was less likely than not that the Veteran’s currently diagnosed acquired psychiatric disorder was related to service. That examiner found no objective medical evidence that the Veteran experienced the psychiatric symptoms for which he received treatment after service. Moreover, the examiner acknowledged the history of the Veteran receiving treatment for a psychiatric disorder after service, but noted that this treatment was intermittent and tied to situational symptomatology. The examiner’s opinion is probative, because it is based on an accurate medical history and supported by a clear rationale. Sklar v. Brown, 5 Vet. App. 140 (1993). In summation, the December 2013 examiner’s conclusion that the Veteran’s acquired psychiatric disorder, first diagnosed after service, is not attributable to the Veteran’s reported history of experiencing depression in service, is far more probative than the Veteran’s general contentions. As noted by the December 2013 examiner, the Veteran has received only intermittent treatment for psychiatric symptoms since service that have arisen situationally. Ultimately, the Veteran has submitted no objective medical evidence in support of his claim. Therefore, in light of the highly probative December 2013 VA examiner’s opinion, the preponderance of the evidence is against a determination that an acquired psychiatric disorder, to include an adjustment disorder and/or an anxiety disorder, is attributable to service. Accordingly, the Board finds that no medical nexus exists between the Veteran’s diagnosed acquired psychiatric disorder and an in-service injury, event or disease. The preponderance of the evidence is against the claim, and it must be denied. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a left shoulder condition. The Veteran contends generally that he has a left shoulder condition that is a residual of an in-service injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against a finding that the Veteran currently has a left shoulder condition that is attributable to service. Ultimately, he has not had any such condition or associated symptomatology at any time during the pendency of the claim or recent to the filing of the claim, and, as such, the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A review of service medical records does not show any diagnoses of or treatment for symptoms of a left shoulder condition. The Veteran has reported experiencing an injury in service in which he was thrown from a truck to which he attributes his purported left shoulder injury, but there is no documentation of such an injury in the service medical records. Furthermore, the Veteran was treated in service for a right shoulder injury in October 1980, with an impression of acute muscular contusion and no additional treatment; however, the treatment record does not reflect that the Veteran complained of any left shoulder symptoms at that time. No abnormalities were noted on the September 1980 discharge examination, and the Veteran also did not report a history of experiencing any left shoulder pain or other associated symptoms on the corresponding Report of Medical History. A review of the available post-service medical records does not reflect that the Veteran has received any treatment after service for any left shoulder condition. Although the Veteran has asserted generally that he has a left shoulder condition that is the residual of an injury he experienced in service, he does not have the medical training and credentials necessary to provide a competent diagnosis in this case. The question of whether left shoulder symptomatology constitutes a diagnosis is a complex matter that is the preserve of trained and credentialed medical professionals. Jandreau, supra. In summation, while the Veteran contends that he has a left shoulder condition, the Board finds no objective medical evidence to corroborate this assertion. Therefore, the preponderance of the evidence is against a determination that the Veteran has the condition at issue or that it is attributable to service. Accordingly, service connection for a left shoulder condition must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) 3. Entitlement to service connection for residuals of a head injury The Veteran contends that he experiences residual conditions, to include back pain, that are residuals of an in-service injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has a history of back pain that he asserts are residuals of an in-service head injury, he was never diagnosed with any residual conditions in service, and furthermore, the preponderance of the evidence is against a finding that the Veteran currently has any residuals that are attributable to the purported in-service injury. Ultimately, there is no objective evidence to suggest that any pain symptoms are related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of service medical records does not show any diagnosis of or treatment for a residual condition associated with an in-service injury. The Veteran has reported experiencing an injury in service in which he was thrown from a truck to which he attributes back pain, but there is no documentation of such an injury in the service medical records. Furthermore, the Veteran was treated in service for a right shoulder injury in October 1980, with an impression of acute muscular contusion and no additional treatment; however, the treatment record does not reflect that the Veteran complained of any other symptomatology at that time. No abnormalities were noted on the September 1980 discharge examination, and the Veteran also did not report a history of experiencing any residual symptoms associated with an in-service injury. Outpatient records dated in 2009 from Parkview Medical Clinic show that the Veteran sought treatment for back pain that he contended he had been experiencing since service when he was pushed off a moving truck. After an in-person evaluation, the impression was simply back pain without a definitive diagnosis. No other treatment records are available in the claims file which document the Veteran’s treatment for back pain or any other possible residuals of the purported in-service injury. Although the Veteran has asserted generally that he has residual conditions attributable to an injury he experienced in service, he does not have the medical training and credentials necessary to provide a competent diagnosis in this case. The question of whether any back-pain symptomatology or any other symptomatology constitutes a diagnosis is a complex matter that is the preserve of trained and credentialed medical professionals. Jandreau, supra. The Veteran has not been afforded an examination in connection with his head injury residual condition service connection claim, but VA does not have a duty to provide one here, as there is no persuasive indication that the condition may be associated with the Veteran’s service or that any such condition even exists. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There is no competent evidence in the claims file that the Veteran has any residual symptoms of the purported injury in service, and, furthermore, there is no evidence that the Veteran experienced any injury in service other than his own self-report. Accordingly, the Board finds that the preponderance of the evidence is against granting entitlement to service connection for residuals of a head injury. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel