Citation Nr: 21004665 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-09 620A DATE: January 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and adjustment disorder, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT An acquired psychiatric disorder, to include depressive disorder and adjustment disorder, was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, and adjustment disorder, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1964 to January 1967. This case originally came before the Board of Veterans’ Appeals (the Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of this appeal is now with the Cleveland, Ohio RO. The Veteran originally filed a claim in January 2011 for entitlement to service connection for posttraumatic stress disorder (PTSD). The evidence of record contains multiple acquired psychiatric disorder diagnoses and as such, the Veteran’s claim has been expanded and recharacterized as indicated on the initial page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded the issues on appeal for additional development in October 2015, September 2017, and June 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appeared at a Travel Board hearing at the RO in August 2015 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Acquired Psychiatric Disorder Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a 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 entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include psychosis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For psychosis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for a psychosis disorder can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis – Acquired Psychiatric Disorder, to include Depressive Disorder and Adjustment Disorder The Veteran is seeking service connection for an acquired psychiatric disorder, originally claimed as PTSD. As noted above, due to other psychiatric diagnoses of depressive disorder and adjustment disorder, the claim has been expanded to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). On January 6, 2020, the United States Court of Appeals for Veterans Claims (CAVC or Court) issued a Joint Motion for Partial Remand which vacated the June 2019 Board decision that denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and adjustment disorder, and remanded to the Board for further consideration and development. No. 19-5002, 2020 U.S. App. Vet. Claims (Jan. 6, 2020) (unpublished). The CAVC in its decision modified the issue to be one of entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and attachment disorder, which in effect deleted the matter of a possible issue of PTSD. The CAVC decision also noted a writing by the RO in January 2016 to have characterized the Veteran’s acquired psychiatric disorder claim to include consideration of secondary service connection, and the Board has thus recharacterized the issue on appeal as noted at the beginning of this remand. The Veteran’s service treatment records are silent for any mention of any psychiatric or other mental-health related issue, whether chronic or temporary, to include his active service from February 1964 to January 1967. The Veteran filed an initial claim for PTSD in January 2011, and VA provided an initial PTSD examination in March 2011. The VA examiner, a psychologist, stated in the report that the Veteran did not meet the criteria for a PTSD diagnosis. The Veteran described stressors relating to his combat service in Vietnam about enemy rockets and mortars being fired at him and his unit on a regular basis, and that a hand grenade was thrown at him one night while he was on the watch. The examiner did note the Veteran re-experienced the symptoms of PTSD with two of the hyperarousal symptoms, but there was no observation of the avoidance systems to a clinically significant degree. The examiner diagnosed depressive disorder and adjustment disorder, but related those diagnoses to events that occurred after service. The examiner commented the Veteran’s stressors and other psychiatric symptoms were related to his physical maladies and his occupation as a printer along with periods of unemployment, rather than any association with active service. The examiner also noted his impression that the Veteran tends to exaggerate and overreport his symptomatology. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran received regular treatment for his depressive disorder and adjustment disorder through VA, and a November 2013 VA treatment note from a medical provider of unknown qualification, Dr. M.Z., stated the Veteran met “some” of the criteria for a diagnosis of PTSD, rather than all of the criteria. This medical provider did not describe enough information to indicate a DSM-IV diagnosis of PTSD, and did not discuss the etiology of the described condition at all. The Veteran testified before the undersigned VLJ in August 2015, saying that when he left active service in 1967, that he began to drink more often. The Veteran also stated that his PTSD was “identified a few years ago” and that he takes prescription medication for that. The Veteran received another VA examination for his claimed acquired psychiatric disorder in November 2015. This examiner noted there was not significant mention of PTSD symptoms in the Veteran’s VA psychiatric treatment notes, and that the symptoms observed and reported were more consistent with emerging adjustment disorder. This examiner continued the previous diagnoses of depressive disorder and adjustment disorder, and also stated the Veteran failed to meet the diagnostic criteria for PTSD in either DSM-IV or DSM-5. This November 2015 examiner provided an opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s psychiatric diagnoses of depressive disorder and adjustment disorder were incurred in or as a result of active military service. The examiner’s rationale was that the Veteran had no documented incidents or symptoms of any mental health-related issues during active military services, and did not seek attention for any mental health-related issue until the mid-1990s, approximately 30 years after military service. The same examiner expanded his rationale in an addendum opinion in January 2016, noting that the Veteran’s active service history and post-service history were silent for any mental health-related issues, and there no significant indicators in the Veteran’s reported history that were clinically significant for possible diagnosable mental health conditions until the mid-1990s. The examiner added that he considered the Veteran’s post-military life stressors such as his divorce in 2001 and periods of unemployment as the most likely stressors of his mental health issues. The Veteran provided a lay statement in February 2016 where he discussed his mental health symptoms that he felt were indicative of PTSD, to include short temper, fits of rage to include physical violence, and nightmares. VA provided an additional addendum medical opinion in October 2017. This examiner, the same VA psychologist who provided the November 2015 opinion, discussed his continuing opinion that the Veteran’s depressive disorder is less likely than not (less than 50 percent) due to or caused by his active service to include any experiences the Veteran had in service which may have resulted in the manifestation of any acquired psychiatric disorder. This examiner indicated he concurred with the March 2011 examiner who noted that he did not see significant mention of PTSD symptomatology in the Veteran’s interview, treatment sessions, or his medical history. Rather, the examiner considered the documented symptoms to be more consistent with a later-emerging adjustment disorder, which includes symptoms of depression in relation to the loss of the Veteran’s job, and other post-military life stressors. The CAVC in its January 2020 opinion considered that October 2017 VA addendum opinion to be inadequate, in that it did not adequately address whether any of the Veteran’s service experiences resulted in the manifestation of any presently occurring acquired psychiatric disorder, as the terminology of the Board’s September 2017 remand had dictated. That October 2017 VA examiner was noted to have related the Veteran’s diagnosed adjustment disorder and depression to current events in the Veteran’s life, to include a job loss, but did not adequately examine whether the diagnosed depression and adjustment disorder related back to the Veteran’s active service. In response to the CAVC’s January 2020 directives, the Board remanded for another VA addendum opinion to address whether the diagnosed adjustment disorder and depression related back to active service, and also whether the diagnosed disorders could be secondary to the Veteran’s other existing service-connected disabilities. As of the date of this Board decision, those other service-connected disabilities are diabetes mellitus, type II; diabetic nephropathy, peripheral neuropathy in all four extremities as due to the diabetes, and tinnitus. VA provided a full VA mental disorders examination in August 2020. This examiner diagnosed one disorder, that of unspecified depressive disorder, mild, in accordance with the DSM-5. The examiner summarized the occupational and social impairment as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and that symptoms were controlled by medication. The examiner noted the Veteran lives alone, has been divorced for 21 years, and had a strong relationship with each of his three adult daughters. The Veteran’s mother passed away earlier in 2020 and his father about two years ago. The Veteran was retired from his printing company about 10 years ago and enjoys woodworking, gardening, and fishing. During the interview, the examiner noted the Veteran was casually dressed and neatly groomed, with normal speech rate, tone, and prosody. Psychomotor activity was unremarkable, and the Veteran denied hallucinations or delusions. He also denied current suicidal or homicidal ideation, plans, or intent. His affect was euthymic, and he had a jovial demeanor during the examination. Per the examiner, the Veteran was focused on near-term family-related events, to include the loss of his parents and an old girlfriend who had committed suicide some number of years ago. The Veteran did not report any significant incidents from his Vietnam service near Pleiku, where he worked in communications duties. He was never wounded nor saw significant incidents that were intrusive, but he did report memories of gunfire and mortars that were unsettling. This examiner provided a negative opinion for service connection, saying that while the Veteran is currently diagnosed with unspecified depressive disorder, it is less likely than not, less than 50 percent probability, that his depressive disorder is due to his military service or any of his service connected conditions. The examiner noted that it is less likely than not that the Veteran’s diagnosis had its onset in service or is related to any in-service disease, event, or injury because the review of all available records, to include previous examinations and treatment records, indicate the Veteran’s depressive symptoms are due post-military life stressors such as the death of an ex-girlfriend. The examiner noted excerpts from the records over time, as follows. An April 2018 treatment note with a VA psychologist noted the patient’s mood has been good, but his focus is on an old girlfriend from about 50 years ago in a failed relationship that ended in her suicide. A different VA psychologist reported in December 2018 remarked also about the Veteran’s fixation with the ex-girlfriend, and noting there were not any comments from the Veteran regarding any service-related stressors, signifying that the Veteran did not have cognizable or intrusive thoughts about any service events. This same VA psychologist commented 11 months later in November 2019 that the Veteran had intrusive thoughts obsessing on his old girlfriend, now deceased. In May 2020, the Veteran denied any mood swings, anger, anxiety, irritability, depression, anhedonia, sleep or appetite problems. Nightmares were well managed, and there were no flashbacks or intrusive thoughts. This examiner commented that the Veteran’s focus was on his recently deceased mother and her burial process, and he did not discuss any of his Vietnam experience from 1966 and 1967. VA provided an addendum opinion by the same VA examiner in September 2020 to address the possibility of secondary service connection and aggravation by any service-connected disabilities, primarily diabetes and associated neuropathies and nephropathy. This examiner reported it was less likely than not, less than 50 percent probability, that the Veteran’s diagnosed depression was related to his service-connected disabilities, diabetes and related conditions. The examiner noted the Veteran has never mentioned his physical disabilities as a factor in his depression and adjustment disorder, and that the Veteran focuses on family and personal events from recent years, beginning in the mid-1990s, almost 30 years after active service. This examiner noted the Veteran is focused on deceased family members and friends in his life, to include his recently deceased parents and a deceased former girlfriend who passed some time ago. The examiner noted a dearth of concern or attention to any service event and that his reported symptoms remained mild at worst as he seems to be functioning normally, participating in social activities and engaging in his hobbies and interests. The Board finds the March 2011, November 2015, January 2016, and August/September 2020 VA examination reports and opinions to be the most probative evidence of record. The Board notes the examinations were performed by a VA psychologist based on extensive and detailed discussion with conclusions based on a review of the Veteran’s complete history and evaluation of current symptoms. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These examiners reviewed the claims file and provided opinions that were sufficiently clear and had well-reasoned rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a mental health disorder. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also notes that VA psychologists consider the Veteran’s statements during examinations and treatment to be exaggerating and overreported. See Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in January 1967, to his initial evaluation of possible mental disorders in 1995 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Upon review of the record, the Board concludes that entitlement to service connection for an acquired psychiatric disorder is not warranted. The Board notes that the Veteran has been diagnosed with a depressive disorder and an adjustment disorder since the initial claim. Thus, the requirement for a current disability is met for an acquired psychiatric disorder. There are no competent medical opinions of probative value in favor of a positive nexus to active service for any acquired psychiatric disorder from any of the VA examiners or mental health providers. The Board acknowledges the Veteran’s lay statements contending that his mental health-related symptoms are related to his service. The Veteran is competent to report his symptoms of as he can observe them. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran is not competent to provide such an etiological opinion relating the claimed condition to service. In sum, the Board finds that an acquired psychiatric disorder was not manifest during active service and is not related to active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.