Citation Nr: 20046069 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 16-17 636 DATE: July 9, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease, or is due to medications prescribed for a service-connected disability. CONCLUSION OF LAW The criteria for an entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the active duty from May 1980 to May 1983. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in January 2019, and the transcript of that hearing is of record. Most recently, the Board remanded this issue in February 2020 to obtain a medical addendum opinion. As the opinion has been obtained and associated with the claims file, the Board finds that there has been a substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor the representative has raised any other specific issues with the duty to notify or assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any other potential issues in this regard. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § § 3.303 (a). Generally, service connection requires: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § § 3.303 (d). Service connection may also be considered on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between a service-connected disability and the condition said to be proximately due to or the result of the service-connected disability. See Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service-connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that his psychiatric condition is related to opioids prescribed for his pain associated with his orthopedic disabilities. Alternatively, he believes his current psychiatric condition stems from an in-service event (stressful event of having to report sexual interactions between superiors and trainees). He testified that he was trying to leave service due to his depressed feelings, and that as a standard procedure for separation, he spoke with a chaplain and a psychiatrist at Fort Benning, Georgia (however, he testified that he did not have any formal psychological assessment). He testified that he currently has anxiety and has trouble sleeping/going into crowds or public spaces, and that he currently receives treatment for his psychiatric condition and takes medication. There is no dispute that the Veteran has a current psychiatric disability. He has been diagnosed with various conditions, to include major depressive disorder, alcohol use disorder, and opioid use disorder. His service treatment records are silent as to any complaint, injury, or diagnosis related to an acquired psychiatric condition. There is an intake note from February 1981 for his alcohol and cannabis use. He waived a separation examination, and the waiver of the separation examination document states that his medical records were reviewed but no medical problems were found. The Veteran first sought treatment for substance abuse in the early 1990s. His August 1994 treatment records show diagnosis of alcohol and cannabis dependence and his report of drinking and substance use for 24 years. His treatment records also include multiple counseling for alcoholics’ marriages (CALM) project notes. For example, his April 1997 CALM project discharge summary note provides his long history of alcohol and marijuana abuse (even dating back prior to his service period), but makes no mention of any in-service incident or diagnosis related to psychiatric condition. He again expressed interest in enrolling in the CALM project in October 2001, and reported drinking since 1994, but did not report any in-service events when asked about stressors. Instead, he only identified his family/relationship with his wife as his stressors. His April 2013 urgent care visit notes show his report of chronic musculoskeletal conditions and him having grown dependent on OxyContin and Percocet in the past, as well as his history of IV heroin abuse and Suboxone. He attributed his opiate dependence to chronic joint pains, and was diagnosed with opioid dependence, but denied any trauma in service. It appears that the Veteran was referred to mental health treatment for the first time after his suicide attempt in 2014 (during which time he reported not having used unprescribed opiates for one year and having drunk once before the last admission). He had his first mental health evaluation in June 2014, during which time he was noted to have depression, anxiety, and insomnia. His treatment records from 2016 list diagnoses of adjustment disorder and polysubstance disorder and his April 2016 VA treatment records document that his chronic pain is being treated with opiates. At no time during any of his treatment sessions did he attribute his psychiatric condition to the alleged in-service incident or that he had onset of psychiatric symptoms in service. He underwent a VA psychiatric examination in September 2019, during which time he was diagnosed with major depressive disorder (MDD), alcohol use disorder, and opioid use disorder (the examiner acknowledged that he has been treated for adjustment disorder by VA providers, but indicated that he actually meets criteria for MDD). During this examination, the Veteran reported not having been treated for any psychiatric illnesses in service. The examiner opined that the Veteran’s MDD is less likely than not related to military service, to include the reported in-service event. In doing so, the examiner indicated that there was no evidence of in-service mental health treatment or diagnosis included in his service treatment records, and further pointed out that the first indication of his mental health condition is more than one year after his service. As for the substance abuse disorder, the examiner noted that it was secondary to his MDD “as a dysfunctional means to cope with symptoms.” Since the February 2020 Board remand, a medical addendum opinion on secondary service connection has been obtained. With regards to the causation aspect, the examiner opined that it is not plausible to connect the Veteran’s history of opiate use and his opioid use disorder directly to his service-connected musculoskeletal conditions without resorting to speculation. The examiner first noted that many people use opioids to manage pain without abuse or dependence, and that even considering the possibility of him having been prescribed opiates for pain management and his use having turned problematic, the examiner pointed out that the Veteran has a history of polysubstance use (including alcohol, marijuana, and cocaine), and that his history is significant for IV heroin use as well. The examiner further underlined the fact that that there is no specific record indicating when the Veteran was prescribed opiates for the first time and what specific condition this was related to. With regards to the aggravation opinion, the examiner stated the Veteran’s report that he uses drugs and alcohol to cope with his mental health conditions, including depression and anxiety, and that his pain condition may also contribute to his need to use opiates to cope with the pain. Ultimately, the examiner opined that it is not possible to determine whether the Veteran’s pain and musculoskeletal disorders aggravate his opiate use beyond its natural progression because it is not possible to determine what the natural progression of his substance use may be without resorting to speculation. The Board gives the most probative value to the VA examinations, as these were furnished after a thorough in-person examination and an extensive review of all records, to include his service records and post-service treatment records, substantiated by concrete factual findings. The lay statements by the Veteran have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of a specific mental health disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Thus, while the Board is cognizant of the Veteran’s direct service connection and secondary service connection contentions (and the fact that he is service-connected for spine and shoulder disabilities), the Board denies his claim, based on the most probative evidence. The only medical opinions of record are unfavorable to his claim. Not only do the Veteran’s service treatment records fail to document any psychiatric symptoms, but for years prior to his claim, the Veteran did not discuss any stressful military event, but dated his symptoms to post-service events. The fact that he did not raise such statements about experiencing such symptoms during service prior to filing his claim with VA weighs heavily against his allegations. As for substance use/abuse, service connection cannot be granted for any disorder arising from the willful misconduct of abuse of drugs/alcohol, so although his service records note such use, he cannot be service-connected now for the resulting disorder. Finally, the medical evidence does not indicate his opiod use is a result of or aggravated by medications prescribed for a service-connected disability. As the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disability, the benefit-of-the-doubt doctrine has no application. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.