Citation Nr: 20051690 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 12-09 612 DATE: August 4, 2020 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 1984 in the United States Air Force. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a mental health condition. In August 2016, the Board reopened the claim for service connection for an acquired psychiatric disorder. In September 2018, the Board remanded the issue for further development to include procurement of personnel records and for an addendum etiology opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). 1. Service connection for an acquired psychiatric disorder. The Veteran contends that his depression and anxiety started in the military. He believes the mental illness was present in service and increased in severity five years after separation from service. See Form 9 (January, 2016; see also VA Form 21-4138 (November, 2016), VA Form 21-4138, labeled as Medical Opinion, (August, 2018); NOD (December, 2013). He added that his mental state was questionably stable during enlistment. He acknowledged that he viewed mental health treatment as ineffective at the time; however, he noted he was in dire need of mental treatment five years after separation. The Veteran noted that his mental anguish and turmoil was chronic and consistent from service up to the present day. The Veteran contends that he had a diagnosis of adjustment disorder in service and he handled his mental health issues by relying on drugs and alcohol. He believes that his symptoms are associated with depression, anxiety, and panic disorder. He does not believe they are not related to his substance abuse noting that it was his way of handling his symptoms. He believes he is not the same as he was entering service and that he did not experience depression prior to service. The Veteran’s representative argues that the evidence of record supports service connection for an acquired psychiatric disability. See Appellate Brief (June, 2020); (July, 2016). The representative notes that the Veteran has reported experiencing feelings of depression and panic during VA examinations. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Board recognizes that the Veteran has claimed service connection for a mental disorder, anxiety, depression, anger, physical and mental abuse. The March 21, 2020 SSOC labeled the issues as service connection for an acquired psychiatric disorder. The Board has recognized the issue as entitlement to service connection for an acquired psychiatric disability, to include the Veteran’s lay statements describing symptoms of mental disorder, anxiety, depression, anger, physical and mental abuse. The question for the Board is whether the Veteran has a current acquired psychiatric disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board notes that the diagnosis of mental disorders must conform to DSM-V as per 38 C.F.R. § 4.125. The Board concludes that, while the Veteran has a current diagnosis of opiod use disorder, major depressive disorder, and social anxiety disorder and evidence shows that he had in-service diagnoses of transitional depression and adjustment disorder, the preponderance of the evidence weighs against finding that the Veteran manifested with any acquired psychiatric disorder during service or that his current mental health symptomatology is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records reveal that he enlisted into military service without any noted mental health diagnosis or reports of neuropsychiatric symptomatology as per his July 1981 entrance examination. See STR – Medical (September, 2001). In September 1983, he was directed by his squad leader to report for mental health evaluation following abuse of his girlfriend, which was deferred. Subsequent reports indicate that he reported being better with his girlfriend and that the recent pattern of abuse was atypical for him. He was diagnosed with adjustment disorder with disturbances in conduct. The Veteran separated from service under honorable conditions pursuant to a January 9, 1984 Discharge Action Under AFR 39-10, Section H, Paragraph 5-47. See Military Personnel Record (August, 2019). The Veteran was found to have unlawfully grasped a fellow servicemember around the neck. Further investigation revealed that he wrongfully appropriated a military identification card. A review of VA and private treatment records show the Veteran was diagnosed with social anxiety, substance abuse disorder, and major depression in 2014 as per VA examination. VA treatment records from December 2003 reveal that he began polysubstance abuse at age 14. See Medical Treatment Record – Government Facility (January, 2009). An August 2008 psychiatric consult noted that the Veteran’s depression was correlated with his regular drug use. See Medical Treatment Record – Government Facility (December, 2008). Subsequent VA treatment records indicate a long-standing history of substance abuse, hospitalizations, and treatment for mental health symptomatology. A January 2009 VA examination revealed the Veteran reported physical abuse as a child. His father had a positive history for substance abuse. See VA Examination (January, 2009). He reported drinking “a little bit” before service and then increased consumption as a release. He had a positive substance abuse history of marijuana, cocaine, and heroin. He reported drinking during high school and smoking marijuana almost daily. He reported being arrested as a juvenile for gang related activity and loitering. During military service, he acknowledged that he was in an abusive relationship that resulted in discharge from the Air Force. He reported having problems with his drill sergeant where he was called names. Following separation, the Veteran reported seeking mental health treatment in 2006 for substance abuse and depression and has continued to receive treatments, including hospitalizations, for mental health symptomatology. The examiner noted that the Veteran does not meet the DSM-IV-TR diagnostic criteria for Panic Disorder or the DSM-IV-TR diagnostic criteria for Major Depressive Disorder. She added that this is not to suggest that the Veteran does not experience feelings of depression and/or panic; however, she noted that he does not meet the criteria for either disorder. An August 2014 VA examination found the Veteran manifested with opiod use disorder (in remission), major depressive disorder, and social anxiety disorder. See C&P Exam (August, 2014). The examiner noted that clinically, there is an association between opioid use and negative mood. She indicated that the long-standing opioid use disorder may exacerbate or cause negative mood, and problems with interpersonal socialization. The Veteran was noted to be depressed, anxious, and dysphoric with symptoms of panic, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood and difficulty in establishing and maintaining effective relationships. The examiner found that it is less likely as not that Veteran’s depression was incurred or caused by adjustment disorder that occurred September 2003. Her rationale included that the Veteran was unable to recall any event around 2003 that was the origin of his depressed mood. She acknowledged that the Veteran admittedly has longstanding (30 year) depression, as well as longstanding anxiety from childhood. Veteran has coped through the use of opioids, which has alienated his family and friends, kept him from viable employment, and likely exacerbates negative mood. He has self-managed antidepressant medications, has ongoing housing problems, and although currently on methadone treatment. The Veteran frequently relapses to heroin use to cope. Depression appears to be a longstanding mood disorder, perhaps enhanced by life stressors. A December 2016 VA addendum opinion concluded that it was less likely than not that the Veteran’s psychiatric disorder was etiologically related to service. The examiner noted that the Veteran reported using drugs and alcohol prior to service. See VA Examination (March, 2017). She noted that the Veteran minimized his alcohol and drug use to his advantage, stating he used “a little bit” prior to military service. The Veteran’s numerous hospitalizations were related to substance abuse and numerous related diagnoses to include bipolar, dependent personality disorder, drug induced mood disorder, adjustment disorder, major depression, anxiety, all per medical records. He has been diagnosed with alcohol/opioid/cocaine dependence that contribute significantly to presenting symptoms, making it less likely as not that any diagnosed acquired psychiatric disorder, to include social anxiety disorder, had its onset in military service or is otherwise related to military service. Veteran reported that he was depressed as a child, likely related to his father’s alcoholism and related emotional and physical abuse. Veteran gave inconsistent reports of being a loner versus being a gang member with friends in high school. A January 2020 VA addendum opinion concluded that it was less likely than not that the Veteran’s psychiatric disorder was etiologically related to service. See C&P Exam (January, 2020). The examiner reviewed the updated case file and clarified that the Veteran had pre-military substance abuse and police involvement due to gang-related activity. His in-service mental health evaluation was for ongoing battery of his in-service girlfriend. The examiner noted the Veteran was clearly an unreliable historian with a pattern of dishonesty, specifically noting the Veteran seeking travel pay when he actually lived nearby. The examiner clarified that there was in-service evidence of the Veteran being sent for evaluation by his squad leader following hitting his girlfriend. Psychological testing revealed situational depression, which the examiner clarified as not being considered a permanent mental health disorder or disability. The examiner noted reports of shyness and found that the Veteran did not meet the diagnostic criteria for social anxiety disorder until May 2014. She clarified that adjustment disorder is a temporary diagnosis that generally resolves. She concluded that the Veteran’s mental health disorder (to include in-service adjustment disorder and situational depression) did not have its onset in military service and was not etiologically related to service. She found that the Veteran had no permanent mental health diagnosis in the military. He had disturbances in conduct during adolescence prior to military service. She clarified that the Veteran is most accurately diagnosed with opiod use disorder and substance induced mood disorder. Neither disability was found to have an onset in the military; rather, the Veteran’s current psychiatric disorder was diagnosed several years after the military. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data with rationale corresponding with use of diagnostic criteria as per DSM-V. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that based on the medical evidence and opinions of record, an acquired psychiatric was not manifest in service or within one year of separation from service. Rather, the Veteran’s current psychiatric disorder (i.e. anxiety, depression, polysubstance abuse) manifested years after his separation from service. The January 2020 VA examiner addressed the in-service adjustment disorder, but explained that such a disorder is a temporary diagnosis that generally resolves. While the Veteran is competent to report having experienced symptoms of depression and anxiety consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of any acquired psychiatric disorder. The issue is medically complex, as it requires knowledge of the field of psychiatry and application of diagnostic measures found within the DSM-V. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also 38 C.F.R. § 4.125. Further, the Board finds that the Veteran’s reports of his neuropsychiatric symptomatology is not credible. He was found to be an inconsistent historian in his report of alcohol and substance abuse during military service as noted in the January 2020 addendum opinion. The Veteran’s legal history exhibits arrest for theft. His in-service personnel records showed the Veteran had wrongfully appropriated a military identification card. The Board notes that the Veteran has shown a propensity to act in a manner that has shown to be untruthful at times. As such, the Board assigns his lay statements regarding the etiology and onset of any acquired psychiatric disorder no probative value and not credible. The Board assigns high probative value to the medical evidence of record including the VA examinations with corresponding addendum opinions as they were conducted upon review of the Veteran’s medical history, consideration of his lay statements, and application of the DSM-V and practices within the field of psychiatry. On balance, the weight of the evidence is against the claim. (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. § 8 U.S.C. § 5107(b). J. SMITH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.