Citation Nr: 21064509 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-35 197 DATE: October 20, 2021 ORDER Entitlement to service connection for an acquired mental disorder other than PTSD, to include dysthymia as due to PTSD, is denied. FINDING OF FACT The weight of the evidence of record is against a finding that an acquired mental disorder other than PTSD, to include dysthymia, had onset in active service or is otherwise causally connected to active service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired mental disorder other than PTSD, to include dysthymia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Upon the last review of this case the Board denied service connection for PTSD and remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development of the non-PTSD acquired mental disorder claim. See 04/19/2021 BVA Decision. There is no indication that the Veteran appealed the April 2021 Board decision to the Court of Appeals for Veterans Claims (Court). Hence, the Board decision as it applies to PTSD is final in all respects. 38 C.F.R. § 20.1100. As discussed further below, the Board finds substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for an acquired mental disorder other than PTSD, to include dysthymia as due to PTSD, is denied. Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Discussion As noted earlier, the Board has already denied entitlement to service connection for PTSD. Hence, service connection for an acquired mental disorder as due to PTSD will not be allowed. Hence, the only factual basis on which this issue may be allowed is via direct service connection or as due to another service-connected disability. The only other disability for which service connection is in effect is tinnitus. See 02/09/2018 Rating Decision Codesheet. There is no assertion by the Veteran or medical evidence that a mental disorder is due to or worsened by the Veteran's tinnitus. In compliance with the Board's remand, the AOJ arranged an examination of the Veteran. The examination report (06/29/2021 C&P Exam, 1st Entry) reflects that the examiner rendered diagnoses of PTSD; alcohol dependence, in remission; and, dysthymia (persistent depressive disorder). The examiner opined that the symptoms of each disorder could not be distinguished, as they exacerbate each other. Id. P. 2. Per the Board's instruction, the examiner made the diagnoses under the DSM-IV criteria, as the Veteran's appeal pre-dated VA's implementation of DSM-5. Id. P. 9. As noted earlier, the Veteran's claimed stressors were not verified. See 07/29/2019 Email Correspondence; 02/18/2020 Correspondence; 03/17/2020 Third Party Correspondence. The Board must assess the credibility and probative value of evidence and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The examiner opined that it was at least as likely as not that all diagnosed acquired mental disorders had onset in active service. See 06/29/2021 C&P Exam, 3rd Entry, P. 4. The examiner's sole rationale was the Veteran's stressor statements that he submitted in support of his PTSD claim. Id. Although the examiner noted that he reviewed the claims file as part of his examination, the Board finds that the examiner's opinion simply is against the weight of the entirety of the evidence of record. Hence, the Board does not afford it significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The primary basis for the opinion noted by the examiner was that at the last C&P Examination of record, which was conducted in April 2010 [04/23/2010 VAX], the examiner did not have access to the Veteran's stressor statements, which were received by VA in May 2010. The examiner's rationale did not reference any other parts of the claims file, although he noted that earlier evaluations should be consulted. Further, the examiner did not note the fact that the Board determined in the April 2021 decision that the Veteran's stressors were not verified. But that is not the sole basis that detracts from the weight the Board affords the examiner's opinion. Although the Board found in the April 2021 decision that the Veteran's stressor statements were not verified, that may not constitute the basis for a denial of non-PTSD acquired mental disorders, as verification is not explicitly required. Cf. 38 C.F.R. § 3.304(f). The Board acknowledges that the Veteran is fully competent to report and testify to his military and medical history. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). While that is the case, his lay reports and testimony still must be assessed for reliability and credibility. Having done so, the Board finds that the weight of the evidence is against it. The Veteran's claim was reopened on the basis of two claimed stressors. First, he asserted that in October 1990 while based in Nevada, he found a female corpse on the sidewalk in front of a casino. He informed the casino staff, but he did not remain on the scene until the police arrived; he did see an ambulance arrive. He shared his experience with his roommate and other friends. See 10/02/2016 Hearing Transcript. His other claimed stressor reportedly occurred while he was performing duty on a bombing range. The Veteran asserted that there was unexploded ordinance all over the range, and that once he almost detonated a round by running over it. On another occasion he observed a sailor who wanted out of the service pick up a firebomb that detonated and killed him. His last stressor was that while working on the range two F-16s made a bomb run and dropped ordinance. The troops were not informed that there would be a mission that day. The bombs were practice rounds but still would have inflicted serious injury had they struck someone. See 05/19/2010 VA 21-0781. The June 2021 examination report does not reference the claimed Reno, NV incident. Although the fact that the Veteran's claims could not be verified is not determinative, the Board still finds that non-verification weighs against a finding of reliability. The Veteran's stressor statement noted that he personally observed a person get electrocuted while working on a bomb range in NV. Yet, a search of historical and other documents yielded no verification of such a fatality. That Board deems it highly improbable that there would not have been any documentation of such an incident. The Veteran's statements over the years have varied. An outpatient entry dated in April 2013 notes his report that he saw two people die in training accidents during his active service. See 10/02/2013 Medical Treatment-Government Facility, P. 3. The only part of the Veteran's assertions that is supported by his service records is that he did in fact work at a bomb range, but as a builder, not in ordinance disposal. See 04/06/1995 STR-MED, 2nd Entry, P. 62, 67, 68. The Veteran testified at his hearing that he turned to alcohol to deal with the impact of what he experienced in NV, and that his subsequent duty performance deteriorated as a result. See 10/05/2016 Hearing Transcript. His service records do document that he received multiple nonjudicial punishments for unauthorized absence at his last duty station; his last performance evaluation was a referral report; and, he was administratively discharged. The Veteran's records, however, document that the basis for most of his disciplinary infractions was repeat instances of oversleeping. He was diagnosed with sleep-wake cycle disturbance, which was the actual basis for his administrative discharge. There is no indication that the Veteran ever complained of his experiences in NV, and a November 1992 evaluation noted that his alcohol abuse was in remission. See 04/06/1995 STR-Med, 2nd Entry, P. 40. The Board notes the lay statements submitted by the Veteran's associates. See 03/30/2010 Buddy/Lay; 07/08/2014, 03/28/2015 VA Forms 21-4138. In the 2010 statement, the Veteran's friend, J.B.B., noted that he had known the Veteran since December 1991, and that he witnessed the Veteran's difficulties due to depression and a hyperthyroid. In the Summer of 1992, he noticed a change in the Veteran. He was noticeably depressed, irritable, moody, and always tired. The Veteran lived with him in the Summer and Fall of 1994, and he still had a hard time with untreated depression. There is no record or other indication that Mr. B has any medical training. Hence, the Board attaches materiality only to the Veteran's behavior or symptoms that Mr. B purported to have observed. The Board does not attach any materiality to Mr. B's opinion that the Veteran was depressed or that he had undiagnosed clinical depression. See 38 C.F.R. § 3.159(a). Later in this decision, the Board discusses medical evidence to the contrary. The other two statements only addressed the Veteran's claimed stressors. The friends did not note any particular symptoms. As the Board noted in the 2021 decision, they do not serve to verify the claimed stressors, as they are based on what the Veteran told them. This alone does not categorically render the statements non-probative, as there are some cases where second-hand reports might be sufficient to corroborate the events in question. Here, however, the 2014 statement crucially neglect to mention when the Veteran relayed the information regarding his stressors. (Emphasis added). While the 2014 statement references the fact that they worked on the bomb range, the friend does not specifically state that he was present when the Veteran reportedly came across a white phosphorous round and at another time, a jet fighter dropped a practice bomb near the Veteran. The 2015 statement notes that the Veteran related the information while in NV. The proponent, however, claimed no personal knowledge. The varying statements the Veteran has made over the years include one in October 2008 where he reported that he witnessed two motor vehicle accidents (MVA) in 1994. In one, a passenger was thrown from the vehicle and died. See 03/29/2010 Government Facility, P. 14. The Board notes that a January 1994 Social Industrial Survey (01/19/1994 VA Examination, 4th Entry) notes the Veteran's report of 3 incidents at the bomb range that he deemed traumatic: a 25-pound practice bomb was accidentally dropped near he and others working on the range; dodging 20 mm bullets fired by pilots who "wanted to scare the hell out of us;" and, almost detonating a 5 mm warhead with a phosphorous charge. He stated that he reported the last incident. Id. P. 3. (Quotes in original). As noted earlier, none of those claimed incidents have be verified, and the Board finds the claimed incident with the 20 mm rounds incredible on its face. The Board deems it highly improbable that highly trained pilots would risk the prospect of committing homicide. This report only addressed the Veteran's employability; it did not seek to render any diagnosis. A separate examination served that purpose. The mental examination (01/26/1994 VA Examination, 2nd Entry) reflects that the examiner reviewed the Veteran's claims file, which he noted did not contain the Veteran's STRs. The examiner noted further that he also reviewed the Report of the Social Industrial Survey. Without going into detail of the report, it is apparent to the Board that the examiner deemed the Veteran a reliable historian. The examiner noted the Veteran's report that he thoroughly enjoyed his service until his last assignment. In addition to sleep-wake issues, the Veteran reported that things started going bad when he was a crew leader of several workers who lacked motivation, over whom he had little authority. Hence, he bore the brunt of their subpar performance. Then his commander received a call from a credit union about payments the Veteran had missed. This caused the Veteran to become withdrawn and down in the dumps, which continued after his separation from service, but it later cleared. The examiner deemed it significant that the Veteran never mentioned depression or being depressed, though that would have been an appropriate time to mention it. The examiner had to elicit it with follow-up questions. Id. P. 5. When the examiner asked the Veteran to describe any possible symptoms of ongoing anxiety or depression, his responses were nonspecific and difficult to gauge. He described a tendency to ruminate over various perceived mistakes or slights that may have rubbed other people the wrong way on the surface, and that they would appear to be the rather ordinary symptoms that would affect everybody to a moderate degree. The examiner noted that mental status examination and objective findings revealed the Veteran to be a neatly dressed man in his early 20s who related to the examiner in a friendly and cooperative fashion. He seemed moderately nervous but within limits for the situation where he was being interviewed and evaluated. His affect was full, supple and appropriate to expressed ideation. Mood was neutral, speech was coherent, and goal directed without evidence of formal thought disorder. There was no evidence of delusional thinking, and hallucinations were not described. The Veteran was fully oriented in 3 spheres, and he demonstrated intact recent and remote memory. His general fund of information appeared reasonable, and his judgment appeared intact. The examiner opined that based on his review of the claims file and the Veteran's self-report, the Veteran had a transient situational depression that resulted from an administrative crisis that gave him an unhappy or marred ending to his military service. The examiner noted that in the absence of the Veteran's STRs, he was reluctant to diagnose a chronic, ongoing psychiatric condition such as anxiety or depressive disorder, but he did diagnose the transient condition on the basis of the Veteran's self-reported history. Hence, the examiner noted a diagnosis of adjustment disorder with depressed mood by self-reported history (currently resolved). Exam Report, P. 7. The Board acknowledges the limitations noted by the examiner in 1994. Nonetheless, except for the STRs, the examiner had access to the claims file as it existed at that time. Further, the examiner observed the Veteran and considered his lay reported history. Most importantly, this was within 2 years of the Veteran's separation from active service, and a medical professional opined that there was no current acquired mental disorder. In subsequent years the Veteran reported depressive thoughts secondary to financial concerns, see 08/30/2007 Government Facility, and the earlier noted report of witnessing a fatal MVA. The examiner who conducted the 2021 examination did not mention or discuss any of the above but opined that the Veteran's dysthymia had onset in active service. The Board places greater weight on the 1994 medical examination, which was closest in time to the Veteran's separation from active service. Based on all of the evidence discussed above, the Board is constrained to find that the preponderance of the evidence of record is against the claim. 38 C.F.R. § 3.303. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. at 53-56. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.