Citation Nr: 18158804 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 07-31 562 DATE: December 18, 2018 ORDER Service connection for an acquired psychiatric disorder, to include depression, as secondary to service connected respiratory disorders, including chronic obstructive pulmonary disease (COPD), is denied. FINDINGS OF FACT 1. During the relevant period on appeal, the Veteran was diagnosed with, and treated for, the acquired psychiatric disorder of depression. 2. The currently diagnosed acquired psychiatric disorder of depression was not caused or worsened in severity by the service connected respiratory disorders, to include COPD. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression, as secondary to service connected respiratory disorders, to include COPD, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from January 1957 to August 1957, with additional Reserve service. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue on appeal has been remanded by the Board on multiple occasions. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the record reflects that, with the receipt of an adequate Veterans Health Administration (VHA) opinion in May 2018, the previous remands have been satisfied, and the remaining issue on appeal is ripe for adjudication. Throughout the course of this appeal, including in the December 2005 claim, the Veteran has solely argued that the diagnosed acquired psychiatric disorder of depression was due to the now service connected COPD. The Veteran has not contended, and nothing in the record supports, that service connection is warranted on a direct basis. As such, development and adjudication in this case has focused solely on the theory of secondary service connection for the claimed acquired psychiatric disorder. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the September 2006 rating decision denying service connection for an acquired psychiatric disorder secondary to a respiratory disorder. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible, and obtained an adequate VHA opinion in May 2018. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The record shows that the Veteran’s service treatment records were destroyed in the 1973 National Personnel Record Center (NPRC) fire. When a veteran’s service treatment records are unavailable through no fault of his own, VA’s duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). While cognizant of its heightened duties, the Board notes that as the issue on appeal is limited to the question of secondary service connection, the danger of prejudice to the Veteran is significantly lessened. For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection for an Acquired Psychiatric Disorder Secondary to Service Connected Respiratory Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). As discussed above, the Veteran has expressly limited the acquired psychiatric disorder issue on appeal to the question of whether a currently diagnosed psychiatric disorder was caused or aggravated by the service connected respiratory disorders, to include COPD. Specifically, the Veteran argues that the COPD symptoms led to the development of depression. Initially, the Board finds that during the relevant period on appeal, the Veteran was diagnosed with, and treated for, the acquired psychiatric disorder of depression. While there was some question as to whether the Veteran was diagnosed with an acquired psychiatric disorder during the period on appeal, in the May 2018 VHA opinion, both a clinical psychologist and a psychiatrist found that the Veteran had a diagnosed psychiatric disorder of depression from 1996 to 2016, which is well within the relevant period on appeal. Next, after a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the currently diagnosed depression was caused or worsened in severity by the service connected respiratory disorders, to include COPD. While the VA treatment records contain discussions of the Veteran’s depression and mental health treatment, there is no indication that any VA physician has ever attributed the depression (or any other acquired psychiatric disorder) to the service connected respiratory disorders, to include COPD. The Board has considered the Veteran’s contention that a diagnosed acquired psychiatric disorder was caused or aggravated by the service connected respiratory disorders, to include COPD. While the Veteran is competent to offer lay statements regarding mental health symptoms at any time, here, as a lay person, under the facts of this case, the Veteran does not have the requisite medical training or credentials to be able to render a competent medical opinion concerning the etiology of the currently diagnosed mental health disorders. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV) cautions that the “proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills.” The “purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose” various mental disorders. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) cautions that it was “not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis.” Rather, clinical training is required “to recognize when the combination of predisposing, precipitating, perpetuating, and protective factors has resulted in a psychopathological condition in which physical signs and symptoms exceed normal ranges.” The “purpose of DSM-5 is to assist trained clinicians in the diagnosis” of various mental disorders. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see also Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran’s lay belief that his schizophrenia and anti psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue). In May 2018, VA obtained a VHA opinion. The VHA opinion report reflects that both a clinical psychologist and a psychiatrist reviewed the Veteran’s mental health history and all relevant evidence of record. After said review, the examiners opined that the Veteran had been diagnosed with, and treated for, depression from 1996 to 2016. Further, the two examiners opined that it was less likely than not that the diagnosed depression was caused or aggravated by the service connected respiratory disorders, to include COPD. Specifically, after reviewing the provider statements, lay statements, and medical records, the VHA examiners found that, when considering accepted medical principles, the evidence did not reflect any connection between the service connected respiratory disorders and the development and/or worsening of the diagnosed depression. As the Veteran is not competent to render a secondary service connection opinion in the instant matter, and as both a clinical psychologist and a psychiatrist found that the evidence of record and the accepted medical principals reflect that it is less likely as not that the service connected respiratory disorders, including COPD, caused or aggravated the diagnosed depression, the Board finds that the weight of the evidence is against secondary service connection for an acquired psychiatric disorder, to include depression, under the provisions of 38 C.F.R. § 3.310. As the preponderance of the evidence is against service connection, benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel