Citation Nr: 20009828 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 13-34 932 DATE: February 5, 2020 ORDER Entitlement to service connection for a psychiatric disorder, to include depressive disorder, adjustment disorder, and substance abuse disorder, is denied. FINDING OF FACT The Veteran’s psychiatric disorder, to include depressive disorder, adjustment disorder, and substance abuse disorder, is not related to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for psychiatric disorder, to include depressive disorder, adjustment disorder, and substance abuse disorder, are not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.9, 4.127. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1972 to May 1974. He died in January 2019, and the appellant is his surviving spouse. In July 2019, the RO granted the surviving spouse’s request for substitution for purposes of processing his claim pending at the time of his death to completion. See 38 U.S.C. § 5121A; see also 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In May 2016 and September 2018, the Board remanded the appeal for further development. The appellant seeks entitlement to service connection for a psychiatric disorder that she believes was due and owing to her spouse, the Veteran, at the time of his death. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1110. 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). Generally, to establish service connection for a psychiatric disorder other than PTSD the evidence must show: (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 during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.301 (a); VAOPGCPREC 2-98. However, service connection is not precluded if the substance abuse is secondary to a service-connected disability. 38 C.F.R. § 3.310. In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Fourth Edition of the DMS (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The Secretary of VA has determined DSM-5 does not apply to claims certified to the Board on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015); see also 38 C.F.R. § 4.125(a). Because the appeal was first certified to the Board in July 2014, the DSM-IV applies. The current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or at any point during the pendency of the claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007); see Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding “that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability exist[s]”). Regarding element one, current disability, as a preliminary manner, the Board notes that at the July 2016 VA examination, the Veteran was diagnosed with antisocial personality disorder under the inapplicable DSM-5. In any event, personality disorders are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, VA treatment records reflect other DSM-IV diagnoses. Specifically, in December 2010, the Veteran was diagnosed with depressive disorder, not otherwise specified, and in September 2011, the Veteran was diagnosed with adjustment disorder, with depressed mood. See December 2010, September 2011 VA Treatment Records. Thus, element one is met as to these diagnoses. Regarding element two, in-service event or injury, in a February 1974 in-service mental status evaluation, the examiner noted symptoms of paranoia, depressed mood, confusion, and not being able to differentiate right from wrong. See February 1974 Service Treatment Record (STR). Thus, element two of service connection is also met. Thus, the crux of the case is whether there was a nexus, or relationship, between the Veteran’s service and his depressive and adjustment disorders. Initially, the Board notes that to the extent the Veteran related his psychiatric disorders to back and knee/leg disabilities on a secondary basis, the Board denied service connection for back and bilateral knee/leg disorders in its September 2018 decision. Thus, secondary service connection is not available. 38 C.F.R. § 3.310. Regarding direct service connection and nexus, in September 2018, the Board remanded the claim for an opinion on this issue. In the resultant September 2019 opinion, a VA examiner opined that it was less likely than not that the Veteran’s diagnosed depressive and adjustment disorders were related to service. In support of this opinion, the examiner explained that the Veteran’s in-service paranoia, depressed mood, and confusion were symptoms of a temporary “state of mind, not a mental health disorder,” and that the Veteran may also have experienced those symptoms from distrust of the examiner or “transient situational stress” from possible military separation. See September 2019 Medical Opinion. The September 2019 examiner noted that the first post-service reports of depression in December 2010, over three decades after service, were noted have been ongoing for six months (or from April 2010), and attributed to motility issues from non-service conditions. The examiner also emphasized that additional VA records dated in 2011, 2017, and 2018 attributed both his adjustment disorder and depressive symptoms to his physical limitations and non-service-connected disabilities. See September 2019 Medical Opinion. The Board finds this opinion probative, as it is well-reasoned and supported by the evidence of record. There is no competent opinion to the contrary. In this regard, prior statements from the Veteran attributing these conditions to service are not competent, as the Veteran did not have the requisite expertise to determine the etiology of a psychiatric disability. To the extent the appellant now relates the Veteran’s psychiatric disability to service, her opinion is also not competent. Thus, element (3) is not met, the claim fails on this basis, and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the Veteran has no service-connected disability, service connection for substance abuse is not available. 38 C.F.R. § 3.310. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ramirez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.