Citation Nr: 18158923 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 13-01 096 DATE: December 19, 2018 ORDER Service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD), to include depression, anxiety, a mood disorder, and a chronic adjustment disorder, is denied. FINDINGS OF FACT An acquired psychiatric disorder other than PTSD, to include depression, anxiety, a mood disorder, and a chronic adjustment disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service and is not shown to be secondary to any service-connected disability. CONCLUSIONS OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from May 1972 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2018, the Board restyled the Veteran’s claim as entitlement to service connection for an acquired psychiatric disorder as entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Board then denied the claim for service connection for PTSD and remanded the claim for service connection for an acquired psychiatric disorder other than PTSD for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disabilities resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Acquired psychiatric disorder other than PTSD, to include depression, anxiety, a mood disorder, and a chronic adjustment disorder The Veteran has argued that he suffers from depression and anxiety secondary to chronic pain—including back pain. However, the Veteran’s lumbar spine disorder is not service connected as such was denied in an April 2018 statement of the case. The Board notes that the Veteran did not file a timely substantive appeal subsequent to the issuance of the April 2018 statement of the case. As service connection has not been established for a lumbar spine disorder, there simply is no legal basis to award service connection for an acquired psychiatric disorder other than PTSD on a secondary basis. See 38 C.F.R. § 3.310. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board now turns to the question of whether the Veteran’s acquired psychiatric disorder other than PTSD can service connected on a direct and/or presumptive basis. The Veteran has a current diagnosis of clinical depression and anxiety disorder related to chronic medical conditions. See e.g., October 2017 mental health consult; see also December 2013 psychology note. Service treatment records demonstrate the Veteran’s symptoms of depression and anxiety during service. In November 1973, the Veteran requested to see a psychiatrist because of anxiety related to his “situation.” Treatment notes reveal the Veteran’s fear of water and generalized anxiety. He was diagnosed with situational maladjustment and an administrative discharge was recommended. In his discharge examination, the Veteran self-reported that he was in good health. He also denied the following conditions: frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort. Post-service VA treatment records reveal that the Veteran was taking paroxetine for the treatment of depression as of October 2005. VA treatment records from an August 2006 psychotherapy evaluation demonstrate the Veteran’s reports of depression. In this evaluation, the psychologist noted the Veteran’s depressed mood and affect. However, the psychologist diagnosed the Veteran with “mood disorder due to a medical condition (chronic pain and sleep apnea).” Another set of mental health treatment notes from October 2006 indicate that the Veteran “has a disturbance in mood due to a general medical condition.” In January 2010, the Veteran had a VA examination to assess potential mental disorders. The examiner reported the Veteran’s claims that he became depressed in service “dealing with colleagues/people due to race.” The Veteran expressed problems with depression related to chronic pain and his inability to have an active, more functional life. The examiner noted that the Veteran’s chronic depression had existed for years, “but is now the result of limited lifestyle and chronic pain/diabetes changes.” The examiner wrote that the Veteran’s medical problems and chronic pain were the result of a motor vehicle accident that occurred in the 1990s. The examiner concluded that the Veteran’s depression and anxiety were not caused by or the result of military service. In December 2013, the Veteran had another mental health examination. During that exam, he was diagnosed with “adjustment disorder, chronic due to pain.” The examiner noted that since the previous exam the Veteran “has experienced depression secondary to pain.” The VA examiner opined that the Veteran’s depression and anxiety were not caused by or a result of military service. Specifically, the examining psychologist concluded that the Veteran’s depression was the result of chronic pain, the inability to work, and subsequent lifestyle choices. A more recent mental health assessment took place in September 2017. The September 2017 VA examiner opined that the Veteran’s acquired psychiatric disorder was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner stated that the Veteran “meets DSM-V criteria for adjustment disorder with mixed depression and anxiety as related to his medical problems/chronic pain” and noted that this diagnosis is considered essentially the same as the diagnosis previously assigned in prior examinations with the extension of anxiety but called differently due to nominal changes in the DSM. The examiner also reasoned that the Veteran’s depression was not related to his service based as VA records demonstrate consistent and predominate treatment for depression in relation to chronic pain, the Veteran did not report mental health treatment until 2008, his discharge was based on situational maladjustment related to fear of the water, that his current diagnosis is not related to fear of water and his current adjustment disorder is related to pain. The examiner further reasoned that the Veteran did not identify fear of water in the treatment records or in this examination, that the post-examination treatment records continue to identify depression/anxiety due to chronic pain and consistently document the Veteran’s report of depression due to chronic pain and that the only objective testing which was valid supported a diagnosis of depression secondary to pain. The examiner noted that there was significant exaggeration, over-endorsement or feigning of symptoms as indicated in the objective psychological testing administered in the December 2013 examination and during this examination and that the validity of the Veteran’s responses throughout the examination become suspect. Psychosis did not manifest during service or within one year of service discharge and there is no evidence of record showing that the Veteran experienced a continuity of symptomatology psychosis following service. In addition, the Veteran has not been diagnosed with psychosis. As such, the Board finds that presumptive service connection is not warranted. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder other than PTSD on a direct basis. While the evidence of record shows the Veteran has been diagnosed with clinical depression, anxiety disorder and an adjustment disorder, the probative evidence of record demonstrates that such are not related to his service. In this regard, the Board places great probative weight on the VA treatment records from October 2006 and the examination opinions from January 2010, December 2013, and September 2017. These opinions had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No contrary medical opinion is of record. The Board notes that the Veteran has contended that his acquired psychiatric disorder other than PTSD is the result of his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s acquired psychiatric disorder other than PTSD and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current symptoms, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is non-probative evidence. Therefore, acquired psychiatric disorder other than PTSD, to include depression, anxiety, a mood disorder, and a chronic adjustment disorder, is not shown to be causally or etiologically related to any disease, injury, or incident in service. Consequently, service connection for such a disorder is not warranted. In light of the foregoing, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder other than PTSD. As such, that doctrine is not applicable in the instant claims, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel