Citation Nr: 18159229 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 09-46 756 DATE: December 19, 2018 ORDER Service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran had active service from November 1971 to December 1973. 2. The Veteran’s acquired psychiatric disorder was not shown in service and is not etiologically or causally related to active service. CONCLUSION OF LAW An acquired psychiatric disorder, other than PTSD, was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a procedural matter, the Veteran appealed the rating assigned in the November 2015 grant of service-connection for PTSD and submitted a request for a hearing before a Veterans Law Judge. At present, the hearing request remains outstanding. Accordingly, the claim for an increased rating for PTSD is not ready for appellate action and will not be addressed in this decision. The claim of service connection for an acquired psychiatric disorder was originally denied in September 2013 and styled as an adjustment disorder with depressed mood. Review of the record reveals that the Veteran has also been diagnosed with a mood disorder NOS, persistent depressive disorder, and major depressive disorder (MDD). Accordingly, the Board has recharacterized the issue to include an acquired psychiatric disorder, other than PTSD (which has already been granted), to better reflect the scope of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the claim of service connection for an acquired psychiatric disorder was previously before the Board in January 2013, at which time the claim on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Next, in connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge in July 2012. A transcript of that hearing has been associated with the claims file. Since the July 2012 hearing, however, the Judge has been appointed as the Board’s Chairman. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal, but prohibits the Chairman from doing so individually. 38 U.S.C. § 7102; 38 C.F.R. §§ 19.11, 20.707. Additionally, a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide their appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In September 2018, the Veteran was notified of his option to have another Board hearing before a panel of judges, to include the Chairman. However, he declined the opportunity for a new Board hearing. Therefore, the Board will proceed accordingly. As to the merits of the claim, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. As an initial matter, none of the currently-diagnosed psychiatric disorders are considered chronic disorders under 38 C.F.R. § 3.309(a); accordingly, presumptive service connection on the basis of chronicity/continuity of symptomatology is not for application. Additionally, the Veteran has not argued that his psychiatric disorders were caused or aggravated by a service-connected disability; therefore, secondary service connection will not be considered. However, direct service connection will be addressed. Turning to the evidence, the Veteran has been diagnosed with an acquired psychiatric disorder. Specifically, October 2010 and March 2012 VA examinations, as well as clinical records, have diagnosed him with an adjustment disorder with depressed mood. And, as noted above, he has also been diagnosed with a mood disorder NOS, persistent depressive disorder, and MDD. Therefore, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, a review of the service treatment records (STRs) reveals that in a series of September 1973 notes, the Veteran reported depression and suicidal ideations and was diagnosed with an adult situational reaction with depression manifested by increasing anxiety and depression, precipitating stress, multiple situational factors, with a predisposition toward an immature personality. The clinician noted that the condition did not exist prior to deployment and developed in the line of duty. The clinician also diagnosed an immature personality disorder manifested by a long history of immature and impulsive behavior that did not develop in the line of duty. Accordingly, an in-service incident has been shown and the second element of service connection has been met. Turning to nexus, in a September 2007 VA examination, the examiner diagnosed an adjustment disorder with depressed mood and opined that it was less likely than not that the diagnosis represented a continuation of the Veteran’s in-service mood disorder. The examiner noted that the in-service “immature personality disorder” diagnosis did not correspond with a then-currently accepted diagnosis, and explained that the Veteran considered himself functional until an injury in 2000, after which he was treated for an adjustment disorder with depressed mood. This evidence weighs against the claim. In an October 2010 VA examination, the examiner diagnosed an adjustment disorder with depressed mood and opined that the Veteran’s then-current symptoms were not related to any in-service circumstance or event, explaining that his then-current symptoms began in 2002 and occurred in response to life stressors such as chronic pain and financial concerns. This evidence also weighs against a medical nexus. In a subsequent March 2012 VA examination, the examiner diagnosed an adjustment disorder with depressed mood and opined that the Veteran’s symptoms were not related to service. The examiner noted that when describing his symptoms, the Veteran mentioned then-current issues with his poor physical health, limited mobility, lack of energy, diabetes, and financial stress associated with unemployment. The examiner observed that the Veteran reported a good history of occupational functioning as he worked at a job for nearly 5 years without occupational problems until 2001, opined that he would not have maintained a successful employment history if he had a longstanding mental illness, and further reported that the Veteran’s then-current adjustment disorder began after he stopped working in 2001. This evidence does not support the claim. In a January 2016 VA examination, the examiner found that it was not possible to diagnose a mental disorder due to gross exaggeration of symptoms and functional impairment. The examiner opined that if it were possible to diagnose a mental disorder, it would not be caused by service. The examiner noted that the Veteran reported that his current symptoms began in 2002 and consistently noted that his symptoms were a response to current life stressors that were unrelated to service. This evidence weighs against the claim. The evidence also includes January 2009 and September 2012 independent psychological evaluations where the clinicians diagnosed severe PTSD and MDD. However, the clinicians failed to opine as to the etiology of MDD. Therefore, this evidence neither supports nor weighs against the claim. And, as noted, PTSD is already service-connected. Further, clinical records reflect ongoing treatment for an adjustment disorder with depression but none of the treating clinicians established a nexus between the Veteran’s current psychiatric diagnoses and service. Based on the above, the medical evidence does not support service connection for an acquired psychiatric disorder. In this regard, the Veteran has been diagnosed with psychiatric disorder and STRs establish an in-service occurrence of suicidal ideations, immature personality disorder, and an adult situational reaction disorder with depression manifested by increasing anxiety and depression. However, the weight of the medical evidence does not establish the critical a nexus between service and current symptoms. Therefore, the medical evidence does not support the claim for service connection. The Board has considered multiple lay statements and testimony offered by the Veteran and his family regarding the etiology of his acquired psychiatric disorder. Specifically, at a July 2012 hearing before a Veterans Law Judge, he testified that he had symptoms of an acquired psychiatric disorder since his return from serving in Vietnam and that, while more recent life stressors may have aggravated his symptoms, they did not cause them. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, they are not competent to offer opinions as to the etiology or current severity of any current disorder due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeal is denied. Finally, the Veteran has not raised any other outstanding issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel