Citation Nr: 21063579 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 04-12 073 DATE: October 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected Osgood-Schlatter's Disease (OSD) is denied. FINDING OF FACT An acquired psychiatric disability did not manifest in service, is not shown to be causally or etiologically related to any disease, injury, or incident during service, psychosis did not manifest within one year of service discharge and was not caused or aggravated by the Veteran's service-connected OSD. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include as secondary to service-connected OSD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1966 to October 1967. This appeal has a long procedural history. A Travel Board hearing was held in March 2008 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In May 2020, the Board remanded the issues of entitlement to service connection for Osgood-Schlatter's Disease (OSD), service connection for bilateral knee arthritis, including as due to OSD, and service connection for an acquired psychiatric disability, including as due to OSD. A January 2021 rating decision granted service connection for OSD with osteoarthritis of each knee with limitation of flexion and extension. The Board notes that this claim was again before the Board in June 2021. At such time, the Board remanded the claim for further development and adjudication. The Board finds there has been substantial compliance with the Board's remand orders as they relate to the issue denied herein, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected OSD is denied. The Veteran contends that he suffers from an acquired psychiatric disability as a result of his active-duty service or in the alternative that such was caused or aggravated by his service-connected OSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § §§ 1110, 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.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases 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. Alternatively, 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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). Furthermore, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of an acquired psychiatric disability. However, post-service treatment records reflect that the Veteran was diagnosed with various psychiatric conditions, to include unspecified personality disorder with borderline and paranoid features, cocaine abuse, cannabis abuse, opioid seeking behavior, polysubstance dependence, dysthymic disorder, major depression, major depression severe with psychotic features, anxiety disorder NOS, financial problems, depression NOS, r/o adjustment disorder, and generalized anxiety disorder. Treatment notes in July 2002 reflect that the Veteran first underwent a mood/depression screening, but that it was negative. In February 2003, a mental status examination showed no depression. In April 2003, the Veteran was diagnosed with major depression after endorsing suicidal ideology and depression for two years. The Veteran was also seen for anxiety in April 2003. In October 2003, the Veteran was diagnosed with major depressive disorder, chronic with periodic psychotic features. In October 2008, the Veteran underwent an initial VA Mental Health examination. The examiner diagnosed the Veteran with depressive disorder, recurrent. The Veteran reported a history of depression. The examiner noted the Veteran's arthritic pain as well as emotional pain due to deaths in his family. The examiner found that chronic pain does tend to produce depressive feelings. The examiner noted that the Veteran previously claimed that his depression began in approximately 2002 but that he also claimed that it was delayed by 8 or 9 years after his discharge. Therefore, the examiner found that much of the Veteran's depression was likely contributable to his pain. However, the examiner found that it did not appear that the Veteran's depression was service-related. Ultimately the examiner state that it did "not appear the depression [was] a result of his service in the United States Air Force." In May 2010 the Veteran underwent a VA Mental Health examination. The examiner found that after reviewing the Veteran's record that his depression was less likely than not a direct result of his military service nor aggravated by his service. The examiner provided the rationale that in light of no mental health treatment or symptoms until 2003, including during service, the year after discharge, or during the Veteran's 25 years in the Merchant Marines, "there does not appear to be a direct correlation with depression and his military service." The examiner further noted that the Veteran's OSD predated service and that while his arthritis pain did contribute to his depression, he was able to work for 25 years following his service. Therefore, the examiner reiterated that it was less likely than not that the Veteran's depression was a direct result of his military service and that there was no evidence in his record to support a different opinion. In March 2011 the Veteran underwent another VA Mental Health examination. The examiner found that in light of the May 2010 opinion as well as no mental health treatment during service, within a year of service discharge, or for the 25 years following his discharge, that it did "not appear the Veteran's current diagnosis of major depression is a direct result of his military service or aggravated by his time on active duty." The examiner opined that the Veteran's mental health disability was not service connected. In December 2015 the Veteran underwent an additional VA Mental Health examination. After a thorough review of the Veteran's record as well as an examination of the Veteran, the examiner found that the Veteran suffered from unspecified personality disorder with borderline and paranoid features. The examiner opined that the Veteran did not have a mental health disorder caused by his military service. In a May 2017 addendum opinion, the examiner was asked to reconcile his prior diagnosis of unspecified personality disorder with borderline and paranoid features with prior diagnoses of record. The examiner responded that he stood by his prior diagnosis and "could not speak for past diagnoses made for the Veteran." In a July 2017 addendum, the examiner was again asked to reconcile the December 2015 diagnosis with the Veteran's other psychiatric diagnoses of record. The examiner found that the Veteran's December 2015 diagnosis of unspecified personality disorder with borderline and paranoid features was made based on psychiatric testing which is considered the most reliable tool. Furthermore, the examiner noted that the Veteran's other diagnoses of record were various and vast. He noted that such a wide variety of diagnoses is based on whatever the Veteran happens to be subjectively reporting at the time. In addition, the examiner stated, "most importantly, the validity was not tested in the clinical setting, and therefore [the examiner] questions the reliability of those diagnoses." The examiner noted that it is extremely helpful, in cases of personality disorders, to clarify symptoms with psychiatric testing. The only testing of record was that conducted in 2015. The examiner provided the opinion that the personality disorder diagnosis is the primary diagnosis. For each of the other diagnoses, it is less likely than not that they had onset in service or are otherwise related to service. It is also less likely than not that they are caused or aggravated by the Veteran's OSD and/or arthritis of the knees. The examiner noted that this opinion was consistent with the other opinions of record. The examiner noted that the Veteran's history of drug abuse had a considerable impact on his depression and anxiety symptoms. Furthermore, his anger at the military and VA also became a source of stress and impacted his "drug seeking." However, the examiner did not find that such was related to "multiple sources of pain." Finally, the examiner found that it was less likely than not that the Veteran's personality disorder had a valid acquired psychiatric disorder superimposed on it. In March 2021 the Veteran underwent another VA Mental Health examination. The examiner opined that the Veteran had an unspecified depressive disorder that was less likely than not proximately due to or the result of his OSD. The examiner did not provide an opinion as to whether the Veteran's unspecified depressive disorder was aggravated beyond its natural progression by his OSD. Therefore, in the June 2021 remand, the Board found that an addendum opinion was needed. In July 2021, the Veteran underwent a final VA Mental Health examination. The examiner conducted a thorough review of the Veteran's file as well as an examination of the Veteran. The examiner confirmed the Veteran's diagnosis of unspecified personality disorder with borderline and paranoid features. He opined that that it was less likely than not that the Veteran had an acquired psychiatric disability that was incurred in or caused by his military service. Furthermore, the examiner found that he could not find adequate evidence of an unspecified depressive disorder or any other diagnosed acquired psychiatric disorder currently that is proximately due to the Veteran's service-connected OSD or that was aggravated beyond its natural progression by his service-connected OSD. The examiner provided the rationale that his opinion and rationale remain consistent with those that have been noted in the file since 2008. The examiner noted that the Veteran's most reliable and primary diagnosis was that of a personality disorder and that other diagnoses of record were not appropriately tested in the clinical setting. Finally, the examiner noted that it was less likely as not that the Veteran's personality disorder had a valid acquired psychiatric disability superimposed upon it. Throughout the appeal the Veteran has submitted statements in which he alleges that his acquired psychiatric disability is the result of his service or in the alternative is secondary to his service-connected OSD. During his March 2008 hearing, he stated his belief that the pain he endured as a result of his service-connected disability caused his depression and other psychiatric symptoms. After a thorough review of the record, the Board finds that service connection for an acquired psychiatric disability is not warranted on any basis to include presumptive, direct, or secondary service connection. As an initial matter, the Board finds the evidence clearly shows the Veteran has a current psychiatric disorder, but as previously noted there was no report of any complaints, treatment or diagnoses related to such in service. However, the first element of service connection either presumptive, direct, or secondary has been met. In regard to presumptive service connection, the Board notes that the clinical evidence of record fails to show that the Veteran manifested psychosis, or any mental health symptoms, within the one year following his discharge from service in 1967. There is simply no medical evidence suggesting that this occurred. Rather the earliest record of any complaints of an acquired psychiatric disability were in 2003, approximately 36 years after the Veteran's discharge. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Regarding direct service connection, the Board again notes that the Veteran's claimed acquired psychiatric disability was not diagnosed during his military service, or as noted previously, for many years thereafter. As was noted above, the Veteran's service treatment records are silent for any complaints, diagnosis or treatment for any mental health symptoms, or any incident or injury related to such. As there is no credible evidence that the Veteran was diagnosed with or exhibited symptoms of a mental health disability during his military service, no examination or opinion is necessary to decide such aspect of his claim. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service). However, the October 2008, May 2010, March 2011, December 2015, and the July 2021 examiners did provide etiological opinions which addressed direct service connection, as the Veteran claimed his mental health disorder began in service. The October 2008, May 2010, March 2011, December 2015, and the July 2021 VA examiners opined that the Veteran's acquired psychiatric disorder, to include unspecified depressive disorder and unspecified personality disorder, was less likely than not incurred in or caused by the claimed in-service injury, event or illness or was otherwise related to the Veteran's active-duty service. The examiners provided the rationale that the medical records did not support the contention that the Veteran's psychiatric disability began in or was in any way related to service, noting no evidence of complaints or treatment for mental health symptoms or diagnoses in service or for many years following the Veteran's discharge. As the VA examiners provided sound medical explanations and rationales for their opinions, the Board finds them very probative. See 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"). Additionally, there are no contrary opinions of record. Furthermore, the contemporary medical evidence does not support a finding that the Veteran's claimed acquired psychiatric disability began in service or supports chronicity of such symptoms. The Veteran's post-service medical record is negative for any complaints, treatment, or diagnosis of mental health problems until 2003. The Board acknowledges the Veteran's allegation that his disability began in or is the result of his service. However, he is not competent to diagnose or speak to the etiology of complex medication conditions. As fundamental elements of direct service connection, the in-service and nexus elements, are missing, the Board finds that direct service connection is not warranted for the Veteran's claim for an acquired psychiatric disability. The Board notes that intellectual disabilities and, in pertinent part, personality disorders are not diseases or injuries for compensation purposes, and while direct service connection of personality disorders is precluded by governing regulations, such disabilities may be service connected if they are "proximately due to or the result of" another service-connected disease or injury. Furthermore, disability resulting from a mental disorder that is superimposed upon an intellectual disability or a personality disorder may be service connected. See 38 C.F.R. §§ 3.310 (a), 4.127. As for a disability superimposed upon the Veteran's personality disorder, the Board finds that service connection is not warranted. The July 2017 and 2021 VA examiners specifically found that it was less likely than not that the Veteran's personality disorder had a valid acquired psychiatric disability superimposed upon it. As the July 2017 and 2021 examiners provided sound medical explanations and rationales for their opinions, the Board finds them very probative. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Furthermore, there are no contrary opinions of record. As such, service connection based on a superimposed mental disorder is not warranted. As for secondary service connection, the July 2017, March 2021, and July 2021 VA examiners found that the Veteran's acquired psychiatric disability was less likely than not caused by his service-connected OSD or any of his other service-connected disabilities. Furthermore, while the March 2021 examiner failed to discuss the aggravation prong of secondary service connection, the July 2017 and 2021 examiners specifically found that the Veteran's acquired psychiatric disability was less likely than not permanently aggravated by his service-connected OSD or any of his other service-connected disabilities. As the July 2017, March 2021, and July 2021 examiners provided sound medical explanations and rationales for their opinions, the Board finds them very probative. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Furthermore, there are no contrary opinions of record. As such, secondary service connection is not warranted. The Board has also considered the Veteran's statements that his acquired psychiatric disabilities are related to his service or his service-connected OSD. In this regard, a layperson is competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the question of causation or aggravation of an acquired psychiatric disability involves a medical subject concerning an internal mental process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of not only physical internal bodily systems but also psychiatry. There is no indication that the Veteran possesses such specialized knowledge. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion regarding the etiology of his acquired psychiatric disability is non-probative evidence. See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the Veteran has offered only conclusory statements regarding the relationship between his acquired psychiatric disability and his service and service-connected conditions. In contrast, the VA examiners took into consideration all the relevant facts in providing opinions. Therefore, the Board accords great probative weight to the VA examiners' opinions. Consequently, the Board finds that the Veteran's acquired psychiatric disability is not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service and was not caused or aggravated by any of the Veteran's service-connected disabilities, to include his OSD. Finally, there is no valid mental disorder superimposed on the Veteran's personality disorder. Therefore, service connection for such claimed disability is not warranted. In reaching this 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 disability. 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, supra. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.