Citation Nr: 21003303 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-17 530 DATE: January 21, 2021 ORDER Entitlement to service connection for a psychiatric disability to include depressive disorder (also claimed as nervous condition) is denied. FINDING OF FACT The preponderance of evidence is against finding that the Veteran’s psychiatric disability to include depressive disorder began during active service, or is otherwise etiologically related to an in-service injury, event, or disease, and is not secondary to a service-connected condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disability to include depressive disorder (also claimed as a nervous condition) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1975 to October 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. By way of background, this matter was remanded by the Board in a decision issued in August 2020 for further development. Specifically, the RO was ordered to schedule the Veteran for an examination to determine the current nature and possible relationship to the Veteran’s service-connected disabilities and any current acquired psychiatric disorder. Pursuant to the remand directives the Veteran was scheduled for an examination to determine whether any current psychiatric disorder was at least as likely as not caused by a service-connected disability and to determine whether any current acquired psychiatric disorder was at least as likely as not aggravated by a service-connected disability. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on this matter, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. Service Connection Direct Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Secondary Service Connection Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Entitlement to service connection for a psychiatric disability to include depressive disorder (also claimed as nervous condition) is denied. The Veteran asserts that he has an acquired psychiatric disability that is related to military service and secondary to his service-connected low back disorder. The Board notes that the Veteran indicated in a September 2020 VA Form 21-4138 that he would be sending progress notes from his psychiatrist and psychologist which underscore his mental health condition; these records have been received, reviewed, and considered by the Board. The Board initially notes that the Veteran is service connected for lumbar spondylosis/arthritis also claimed as a low back condition, pursuant to Diagnostic Code 5242-5237. The Veteran’s service treatment records (STRs) are silent for any complaints, diagnosis, treatment or notation of any type of psychiatric disorder. On his Report of Medical History upon separation in September 1987, the Veteran indicated he was in good health; the corresponding Report of Medical Examination indicates the Veteran’s psychiatric state was clinically evaluated as normal. The Veteran’s post service treatment records indicate that the Veteran had ongoing issues with depression and mental health issues that began in 2009. Treatment notes dated December 2010, April 2011, and August 2011, October 2011, December 2012 state that the Veteran has depression and is followed by a private psychiatrist. A treatment note dated December 2011 notes that the Veteran has depression and was involved in a severe car accident. Treatment notes dated October 2015 indicate that the Veteran has a history of depression and is followed by a private psychiatrist. A treatment note dated January 2016 states that there is evidence of clinical depression. Another treatment note dated January 2016 notes that the Veteran had a history of depression with specifiers of mixed anxiety and depressed mood. Moreover, it was noted that the significant psychosocial and contextual factors were chronic medical problems. A January 2019 treatment note states that the Veteran is feeling down, depressed, or hopeless nearly every day. Additionally, a separate January 2019 treatment notes states that his depressive symptoms are not related to trauma exposure with no identifiable trauma. A March 2020 treatment note indicates that the Veteran has major depressive disorder without psychotic features. The Veteran was afforded an examination to assess his psychiatric condition in November 2011. The examiner found that the Veteran did not have nor had he been diagnosed with a mental disorder that conformed to DSM-IV criteria at that time. The examiner opined that the claimed psychiatric condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner stated that the Veteran reported that he began psychiatric treatment in 2009, but presented no evidence of his treatment. The examiner also noted that the Veteran became depressed due to losing his job when the factory in which he worked closed. Moreover, the examiner noted that there was no record of the Veteran having mental disorders while in the military or the year following discharge. Additionally, it was noted that the Veteran never saw a mental disorder specialist until 2009, 31 years after he was discharged. The Veteran was afforded another VA examination in September 2020. The examiner diagnosed the Veteran with unspecified depressive disorder. The Board notes that the Veteran has also been diagnosed with TBI after a September 1977 motor vehicle accident. The September 2020 examiner has indicated that it is possible to differentiate the symptoms attributable to the Veteran’s TBI disability from any non-TBI mental health diagnosis. Therefore, the Board will focus solely on the notations of this examination that are related to the Veteran’s mental health diagnosis. The examiner provided a summary of the Veteran’ s mental health history and noted that the Veteran had a history of psychiatric complaints, findings and treatment for psychiatric issues for which he received treatment at “community” since 2009. The examiner noted that when the Veteran began seeing a private psychiatrist, Dr. LM it was due to occupational stressors when the factory that the Veteran worked for closed in 2009. It is noted that the Veteran was diagnosed with recurrent major depressive disorder. Additionally, the examiner stated that there is no history of hospitalization or emotional crisis. It is further noted that the Veteran is currently followed by community provider, Dr. CD and since October 2014 it is noted that he is also followed by Dr. MRR, a VA psychiatrist who diagnosed the Veteran with depressive disorder. Moreover, the examiner noted that the following symptoms actively apply to the Veteran’s diagnoses: depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner opined that the Veteran’s depressive disorder is not due to, secondary to, incurred, or associated in any way to the Veteran’s service-connected back condition. The examiner noted that there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to military service during military service, or within one year of discharge from the military service. It is also noted that the Veteran sought private psychiatric care around 2009, almost 31 years after military service. Additionally, the examiner noted that at that time, the Veteran sought psychiatric help due to occupational stressors when the factory closed. Also, the examiner noted that there is no relation between service connected back injury and the mental condition diagnosed around 2009. The examiner stated that the back injury and psychiatric condition are not etiologically related to one another. The examiner determined that the Veteran’s depressive disorder and service connected back disabilities are in different time frames, different etiology, different pathophysiology and different anatomical systems and have no relation to one another. Additionally, the examiner opined that an aggravation relationship was not found between the depressive disorder and low back condition. The Board notes that there are no contrary opinions of record. The preponderance of the evidence is against service connection for a depressive disorder. The probative medical evidence indicates that the Veteran’s current depressive disorder was not incurred in service, but rather related to other factors including post service occupational stressors that occurred over 31 years after military service. See September 2020 VA examination. There is no indication of the Veteran experiencing any type of psychiatric issues in service and no causal link of a psychiatric disorder to active service. The earliest medical evidence of record indicating the presence of a psychiatric disability is more than three decades after his separation from active service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board recognizes that the November 2011 examiner found that the Veteran did not have any type of mental disorder, despite the Veteran reporting to the examiner that he began psychiatric treatment in 2009. The Board does not discredit the findings of the November 2011 examiner as his findings were based on the current evidence before the examiner at that time, the statements reported by the Veteran, and the DSM IV criteria used to evaluate whether or not the Veteran did in-fact have a psychiatric disorder. Furthermore, the examiner acknowledged in his report that the Veteran saw a mental disorder specialist in 2009. The examiner in his report indicated that the Veteran did not present any evidence of treatment. The Board finds that notwithstanding the lack of evidence presented, the examiner took into consideration that the Veteran saw a psychiatrist in 2009 and made an informed decision based on his examination of the Veteran and the evidence available to him at that time. Moreover, the Board finds that the rationale offered by the examiner was thorough and supported by the record as the examiner found that the depressive disorder was less likely than not related to service because the Veteran experienced depression in 2009 in relation to losing his job when a factory where he worked was closed. The examiner considered the statements directly reported to him by the Veteran and found that even if they are factually accurate, the record supports that there are other factors including occupational and medical issues that have directly contributed to the Veteran’s depression disorder. Both the Veteran’s post service treatment records and examinations of record support the fact that the cause of the Veteran’s depression stems from factors other than military service. The Board assigns the November 2011 opinion probative value as it is consistent with the evidence of record. The Veteran has continuously indicated throughout the appeal that his current depressive disorder is related to his service-connected back disability and is a result of active military service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his depressive disorder disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Psychiatric disorders require specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his active duty service. With respect to the Veteran’s secondary theory of entitlement, the weight of the medical evidence is against this claim. The Veteran has satisfied the first two elements by demonstrating that he has a current depressive disorder and is currently service connected for a back, disability among other disabilities. However, there is no nexus between the currently-diagnosed depressive disorder and the Veteran’s service-connected low back disability. As stated above, the September 2020 examiner opined that there was no evidence to establish any nexus between the current depressive disorder and the Veteran’s service. Moreover, the examiner determined that the Veteran’s depressive disorder and service connected back disabilities are in different time frames, different etiology, different pathophysiology and different anatomical systems and have no relation to one another. Thus, secondary service connection is denied. The Board finds the opinion of the September 2020 examiner to be probative and well supported by the evidence of record. Since the Veteran’s depressive disorder was not related to service, nor diagnosed within the first year after discharge, or secondarily related to service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.