Citation Nr: 21002089 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-20 591 DATE: January 12, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a psychosis did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.384. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to March 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2009 by a Department of Veterans Affairs (VA) Regional Office. In September 2016 and May 2019, the Board remanded the issue on appeal for additional development and it now returns for further appellate review. The Board notes that, subsequent to the issuance of the supplemental statement of the case in May 2020, additional evidence consisting of VA treatment records was associated with the record. However, as such are irrelevant to the instant claim or include findings that are duplicative of those previously considered by the Agency of Original Jurisdiction (AOJ), no prejudice results to the Veteran in the Board proceeding with a decision at this time. 38 C.F.R. § 20.1305(c). The Board also observes that, for the entire appeal period, the Veteran has been represented by The American Legion. See December 2004 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative). However, on September 28, 2020, he submitted a VA Form 21-22 in favor of Disabled American Veterans (DAV). Nonetheless, as the Veteran’s current appeal was docketed at the Board on June 28, 2020, and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, the American Legion retains representation of the Veteran in the instant appeal. 38 C.F.R. § 20.1305(a), (b); see e.g. Perez v. Shinseki, 25 Vet. App. 190 (2011) (the Board did not err in denying claimant’s request for change of representative, where request was submitted more than 90 days after his appeal was certified to the Board and no good cause was shown for the delay). Finally, the Board notes that the Veteran has a separate appeal involving the issues of entitlement to an increased rating for gastroesophageal reflux disease, esophagitis, and mild duodenitis, and whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for otitis media, rhinitis, and a throat disorder pending. However, DAV, his representative in such appeal, is still in the process of providing additional argument on his behalf. Therefore, the matter will be the subject of a separate Board decision issued at a later date, if otherwise in order. Entitlement to service connection for an acquired psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as psychoses, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In this regard, psychosis is defined as brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. When a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For posttraumatic stress disorder (PTSD), service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran contends he currently has PTSD due to witnessing the death of his newborn son during service. While his service treatment records include a notation of “SAD” in February 1985, no further explanation of the notation is provided and, as such, it is unclear whether such represents a comment on the Veteran’s mood or, in the alternative, an acronym, which will be discussed further below. His service treatment records are otherwise negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. Post-service VA treatment records reflect multiple diagnoses of an acquired psychiatric disorder proximate to the Veteran’s September 2008 claim, to include anxiety disorder, depressive disorder not otherwise specified (NOS), bipolar disorder, schizoaffective disorder, substance induced mood disorder, and mood disorder NOS. However, the Board finds the probative evidence does not show the Veteran has a current acquired psychiatric disorder related to his military service. In this regard, in March 2018, a VA psychiatrist noted the Veteran served in an era of peacetime, did not serve in a war zone, and his military occupational specialty was in a non-combatant position. In addition, his service records were negative for evidence that the Veteran engaged with the enemy or had a fear thereof. The VA psychiatrist found that, although the Veteran’s claimed stressor was a tragic one, the narrative did not add up that he would have PTSD from it. In this respect, he noted that service records were “quiet” for mental health and void of proxy markers. Thus, the VA psychiatrist found there was no evidence to indicate the Veteran had a psychiatric disorder, nor was one suspect, in service. To the contrary, the evidence indicated the Veteran did quite well in the service. Further, mental health records in the late 1990s indicate an onset of psychiatric illness, which the Veteran repeatedly reported was during his employment with the U.S. Postal Service. Moreover, the VA psychiatrist found it notable that the Veteran has made multiple claims to the federal government with repeated documentation attributing the onset and contributory factors of his depression and anxiety to his working with the post office and not his military service. With respect to the notation of “SAD” in the service treatment records, the VA psychiatrist found that there was no mental health diagnosis tethered to such and it was not good evidence to substantiate a mental health claim. Here, the evidence did not reflect reports related to mental health issues until the late 1990s, and the VA physician found it was implausible that so many providers would miss a link to military service and the Veteran would not mention such. Thus, he concluded the evidence failed to indicate a link or relationship between the Veteran’s military service and his psychiatric symptoms. However, in the May 2019 remand, the Board found that the March 2018 VA examination was incomplete and, thus, inadequate. Specifically, it was noted that the examiner only offered an opinion under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5); however, due to the date of certification of the Veteran’s appeal, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), was applicable to his claim. Consequently, the Board remanded the case in order to obtain an addendum opinion addressing whether the Veteran meets the criteria for PTSD or any other psychiatric disorder under the DSM-IV and, if so, whether such is related to his military service. In November 2019, a VA psychologist also found the Veteran did not meet the criteria for a diagnosis of PTSD under either the DSM-IV or DSM-5. Specifically, while the death of his child is traumatic, she determined such did not meet the stressor criterion for a diagnosis of PTSD. Additionally, the VA psychologist noted that no mental health issues were reported in the service treatment records, and the Veteran was employed by the postal service for 14 years following his separation from service. She included a detailed review of the Veteran’s post-service mental health history, noting the various diagnoses of acquired psychiatric disorders, and found that, given the findings in their totality, the Veteran currently met the diagnostic criteria for mood disorder NOS (unspecified depressive disorder NOS under the DSM-5). However, the VA psychologist found it is less likely than not that his current diagnosis is proximately due to his military service. Specifically, she found that, given the available evidence, to include the Veteran’s course and symptom development, his current diagnosis seemed to be a separate and independent diagnosis less likely than not related to his military service. In particular, the VA psychologist noted the absence of any mental health issues documented in the service treatment records and post-service treatment records until approximately 14 years following discharge from service. In this case, the VA examiners provided conclusive opinions that the Veteran currently does not have an acquired psychiatric disorder pursuant to the DSM-5 or DSM-IV related to service. In addition, the November 2019 VA psychologist explained, in detail, why it was less likely than not that any of the acquired psychiatric disorders previously diagnosed are related to service. In support of the opinions, the VA examiners provided thorough, reasoned explanations based on a detailed review of the evidence of record, citing to the service treatment records, post-service treatment records, and the Veteran’s lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, the VA examiners attributed the Veteran’s psychiatric symptoms to life events other than an in-service event, injury, or illness, to specifically include consideration of the reported in-service death of his child. In addition, the Board finds pertinent that the evidence of record does not include a probative medical opinion to the contrary. Although the Veteran claims he has a current acquired psychiatric disorder related to his military service, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of an acquired psychiatric disorder is not a simple question that can be determined based on mere personal observations by a lay person, the Veteran’s lay testimony is not competent to establish a medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. Here, it is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer such an opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, the Board affords his statements as to the etiology of a current acquired psychiatric disorder no probative weight. Further, as noted by both VA examiners, the evidence does not show that a psychosis manifested during service, or within one year of the Veteran’s separation from active duty. In this regard, the first reports of symptoms that could be related to an acquired psychiatric disorder appear in VA treatment records approximately 14 years after the Veteran’s separation from service. Even considering the Veteran’s lay testimony regarding the onset and continuity of his symptoms of depression and anxiety, no medical professional has related such to a psychosis that had its onset in service, or within one year of his separation from service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). To the contrary, the VA examiners found that an acquired psychiatric disorder did not manifest for many years after service. Thus, the Board finds that presumptive service connection for a psychosis is not warranted. In conclusion, the Board finds that an acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a psychosis did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such 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 claim of entitlement to service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.