Citation Nr: 21005235 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-22 073 DATE: January 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder (MDD), is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any point during or approximate to the pendency of the claim, an acquired psychiatric disorder other than PTSD that is productive of psychiatric symptoms or functional impairment separate and distinct from that for which he is currently service-connected. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to June 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded by the Board in July 2018 and June 2020. It has since returned. Service Connection Service connection means that a veteran has 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). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder (MDD), is denied. A discussion of the background of this claim is necessary to clarify the actions taken herein. In this regard, in his June 2011 claim, the Veteran originally asserted entitlement to service connection for “recurrent nightmares.” See June 2011 Veteran’s Application for Compensation (VA Form 21-526). Based on the results of an October 2012 VA psychiatric evaluation, which found that the Veteran did not meet the diagnostic criteria for PTSD and instead diagnosed Major Depressive Disorder (MDD), Not Otherwise Specified (NOS), the agency of original jurisdiction (AOJ) characterized the Veteran’s claim as one for service connection for MDD in its October 2012 rating decision denying service connection. See October 2012 VA Initial PTSD Disability Benefits Questionnaire (DBQ) (identifying psychiatric symptoms attributable to the MDD diagnosis including exaggerated startle response, depressed mood, chronic sleep impairment, and mild memory loss); October 2012 Rating Decision. In response, the Veteran submitted a statement in February 2013 expressing his disagreement with the RO’s “decision denying [him] service connection for posttraumatic stress disorder (PTSD)” and provided a medical opinion from his private treating psychologist diagnosing PTSD relating this condition to the Veteran’s traumatic experiences during his active military service. See February 2013 Statement in Support of Claim (VA Form 21-4138); January 2013 Statement of T.A.S., Ph.D. (on VA Form 21-4138) (identifying psychiatric manifestations attributable to PTSD that included “intrusive memories, distressing dreams, psychological/physiological distress to cues, avoidance of thoughts or feelings, detachment, restricted range of affect, difficulty falling asleep, irritability, hypervigilance, and exaggerated startle response”). In the May 2015 statement of the case (SOC) that continued to deny the claim, the RO again recharacterized the issue as service connection for PTSD. In his June 2015 substantive appeal, the Veteran continued to emphasize his disagreement with VA’s failure to grant service connection for PTSD. See June 2015 VA Form 9 (stating that “VA incorrectly decided [his] claim for PTSD”). See also January 2016 Statement of Accredited Representative (VA Form 646) (reflecting that the Veteran was appealing the denial of entitlement to service connection for PTSD). Subsequently, in a July 2018 appellate brief, the Veteran’s representative acknowledged that the October 2012 VA examiner “stated that the Veteran did not meet the criteria for PTSD, and noted that his MDD was not a result of his time in service.” See July 2018 Informal Hearing Presentation. However, the Veteran’s representative argued that the October 2012 VA examiner failed to consider “how the Veteran’s service-connected disorders impact his mental health” and further noted that the Veteran’s service-connected disabilities, including prostate cancer, ischemic heart disease, and erectile dysfunction “most certainly can cause depression.” Id. Accordingly, the Veteran’s representative classified the issue as entitlement to service connection for MDD based upon this new theory of entitlement. Id. As indicated in the introduction above, in its July 2018 decision, the Board granted service connection for PTSD based primarily upon the opinion of the Veteran’s private treating psychologist classifying the Veteran’s psychiatric pathology as PTSD and relating it to the Veteran’s in-service traumatic events. See July 2018 Board Decision. Additionally, in light of the MDD diagnosis of record and considering the alternate theory of entitlement raised by the Veteran’s representative, the Board remanded the issue of entitlement to service connection for a psychiatric disorder other than PTSD for a VA psychiatric examination and opinion. Id.   In a November 2018 rating decision, the AOJ implemented the Board’s grant of service connection for PTSD, assigning the Veteran a 30 percent evaluation for symptoms including depressed mood, mild memory loss, chronic sleep impairment, and functional limitations including difficulty in social and occupational functioning. See November 2018 Rating Decision. The Veteran did not appeal the assigned rating or the effective date. The March 2020 VA psychiatric examination report, performed pursuant to the Board’s July 2018 remand, reflects that the Veteran “denied any symptoms of depression or anxiety beyond those associated to his . . . service-connected PTSD,” that he “denied any current significant symptoms of depression or anxiety associated with any medical diagnoses,” and also that he “denied any significant emotional distress as a result of Service-Connected medical disabilities/prostate cancer.” See March 2020 VA Mental Disorders DBQ; March 2020 VA Behavioral Health Medical Opinion DBQ. Nevertheless, the VA examiner diagnosed “Other Specified Anxiety Disorder,” finding that this condition was productive of “[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” Id. (reflecting symptoms of anxiety and mild memory loss). The examiner ultimately provided a negative opinion, disassociating the “Other Specified Anxiety Disorder” from both the Veteran’s active service and his service-connected disabilities. See id. However, in June 2020, the Board found that the VA examination reports of record, including specifically the March 2020 VA psychiatric evaluation performed pursuant to the previous July 2018 remand, were inadequate for rating purposes. The Board thus remanded the claim again for a new VA examination and opinion, which occurred in August 2020. See August 2020 VA Mental Disorders DBQ. The August 2020 VA examiner diagnosed PTSD “by history” and further found that the Veteran did not have additional psychiatric manifestations separate and apart from those attributable to his service-connected PTSD. Id. In particular, the August 2020 examining VA psychologist determined that a psychiatric evaluation of the Veteran failed to reveal any psychiatric pathology “consistent with either major depressive disorder or other specified anxiety disorder.” Id. The examiner did not evaluate or comment upon the nature and/or severity of the Veteran’s service-connected PTSD. Id. (acknowledging the Veteran’s report of experiencing “PTSD symptoms including nightmares of Vietnam, hypervigilance, and an exaggerated startle response” but noting that the scope of the examination did not include an assessment of the Veteran’s PTSD). In light of the findings of the August 2020 VA examining psychologist, the AOJ continued to deny service connection for an acquired psychiatric disorder other than PTSD in the September 2020 supplemental statement of the case (SSOC). Accordingly, although the benefit originally sought by the Veteran, namely service connection for his posttraumatic psychiatric pathology, has been granted, the issue remains whether service connection is warranted for any additional psychiatric manifestations, separate and apart from those attributable to the service-connected PTSD. In this regard, the Board notes that the medical evidence of record does not reflect that the Veteran has separate psychiatric diagnoses productive of distinct symptoms. Rather, it appears, based on a review of the medical evidence of record, including the VA psychiatric evaluation reports, the medical opinion of the Veteran’s private treating psychologist, and the VA treatment records, the Veteran’s various evaluating and treating clinicians have alternatively referred to the universe of his psychiatric pathology as PTSD, MDD, and/or other specified anxiety disorder. Furthermore, the Board notes that, although various manifestations of a single disability may be assigned separate disability evaluations, VA regulations preclude the practice of “pyramiding,” which is the evaluation of the same manifestation of a disability under different diagnoses. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Indeed, the United States Court of Appeals for Veterans Claims (Court/CAVC) has noted that 38 U.S.C. § 1155 implicitly contains the concept that “the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology; such a result would overcompensate the claimant for the actual impairment of his earning capacity” and would constitute pyramiding. Esteban, 6 Vet. App. at 261, quoting Brady v. Brown, 4 Vet. App. 203 (1993). Here, the Veteran is already in receipt of service connection for PTSD, which has been assigned a 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. With the exception of eating disorders, all mental health disorders, including PTSD, Other specified anxiety disorder (Diagnostic Code 9410), MDD (DC 9434), and depressive disorder NOS (Unspecified depressive disorder, DC 9435), are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, Diagnostic Codes 9201-9440. The symptoms attributed to the Veteran’s PTSD by his private treating clinician (including “intrusive memories, distressing dreams, psychological/physiological distress to cues, avoidance of thoughts or feelings, detachment, restricted range of affect, difficulty falling asleep, irritability, hypervigilance, and exaggerated startle response”) encompass the symptoms attributed to the Veteran’s MDD by the October 2012 VA examiner (including exaggerated startle response, depressed mood, chronic sleep impairment, and mild memory loss). See October 2012 VA Initial PTSD DBQ, January 2013 Statement of T.A.S., Ph.D. (on VA Form 21-4138). Subsequent VA examination reports have not identified any additional psychiatric pathology or functional impairment attributable to any psychiatric disorder for which service connection is not in effect. See March 2020 VA Mental Disorders DBQ; March 2020 VA Behavioral Health Medical Opinion DBQ; August 2020 VA Mental Disorders DBQ. See also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (reflecting that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability”). As such, because the criteria under the General Rating Formula contemplate the disabling effects of the Veteran’s psychiatric symptomatology, to the extent that the Veteran asserts that service connection is warranted for another acquired psychiatric disability other than PTSD, his symptoms were already taken into consideration in the assignment of a rating for his PTSD. Thus, in this case, because there is no objective evidence that the Veteran has an acquired psychiatric disorder other than the service-connected PTSD that is productive of a functional impairment in earning capacity beyond that contemplated by the 30 percent evaluation currently assigned his psychiatric disorder, awarding service connection (and hence, a separate disability rating) for an acquired psychiatric disability other than PTSD would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. See also Saunders, 886 F.3d 1356. Accordingly, an award of service connection for an acquired psychiatric disorder other than PTSD is not warranted. The Board is grateful to the Veteran for his service and regrets that it cannot render a favorable decision in this matter. If the Veteran experiences any increased or additional psychiatric symptoms, or if future clinical assessments are made supporting the existence of such, he is encouraged to seek additional compensation. In sum, the preponderance of the evidence of record weighs against a finding that the Veteran has a current acquired psychiatric disorder other than the service-connected PTSD that is productive of additional symptoms and manifestations resulting in a functional impairment in earning capacity separate and apart from that contemplated by the evaluation assigned his service-connected psychiatric pathology. In the absence of proof of a current disability, there can be no valid claim. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (holding, in relevant part, that service connection requires the existence of a current disability); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” and that “[i]n the absence of proof of present disability there can be no valid claim”) (citation omitted); Chelte v. Brown, 10 Vet. App. 268 (1997) (A “current disability” means a disability shown by competent medical evidence to exist.).   Consequently, the benefit-of-the-doubt rule does not apply, and service connection for an acquired psychiatric disorder other than PTSD, is denied. See 38 U.S.C. § 5107;38C.F.R. § 3.102; Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.