Citation Nr: 21064942 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 16-35 642A DATE: October 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder is denied. FINDING OF FACT The Veteran's acquired psychiatric disorder was not incurred in, due to, or otherwise related to his active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force (USAF) from February 1956 to August 1959, and in the United States Navy (USN) from March 1960 to April 1968. During his active duty service, the Veteran was deployed to the waters of the Republic of Vietnam (RVN). This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) January 2015 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran's claim was most recently remanded by the Board for additional development in July 2021. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the July 2021 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder The Veteran claims that his acquired psychiatric disorder is caused by, incurred in, or is otherwise due to his active duty. Specifically, the Veteran alleges that his psychiatric disorder is caused by his service in the RVN. Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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). Service connection for posttraumatic stress disorder (PTSD) specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). However, as discussed more in-depth below, the Veteran does not have a diagnosis of PTSD. After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's medical records indicate that he has been diagnosed with depressive disorder, unspecified with anxious distress. This fulfills the first Shedden element necessary to establish service connection. While on active duty, the Veteran served on United States naval vessels in the waters and riverways in and around Vietnam. The missions included transporting soldiers, and often included the fear of being attacked by hostile forces. Furthermore, December 2014 lay statements from the Veteran and his wife indicate that he felt psychological distress while he was deployed abroad, and the symptoms continued when he returned home to the United States. The Board finds that the medical records, combined with the lay evidence, fulfill the second Shedden requirement needed to establish service connection. What is left for the Board to determine is whether the Veteran's currently diagnosed acquired psychiatric disorder is caused by, due to, or otherwise related to his active duty service. The Veteran's post-service medical records show repeated denials of psychiatric issues, and negative depression screens, prior to his December 2014 VA examination, as well as for a period of time afterwards. See generally VA Treatment Records. The Board notes that there are instances in the Veteran's medical records during the course of the current appeal where he denied experiencing mental health difficulties. For example, at a May 2019 mental health screening, the Veteran denied "depression, anxiety, panic, loss of memory, [and] suicidal ideation." In December 2014 the Veteran was seen for a VA examination to determine whether he had PTSD. While the examiner found that the Veteran did not meet the diagnostic criteria for PTSD, he did diagnose the Veteran with adjustment disorder. However, the examiner concluded that the Veteran's psychiatric condition was "less likely than not ... caused [by] or incurred during his active duty[sic] service." This was based on the Veteran's own reporting of his symptoms. Specifically, that the Veteran's "infrequent panic attacks" were "related to depression," which itself had only "begun in the last few years." The Veteran's panic attacks were found to have begun "during his work" at his post-service, civilian occupation. While the examiner's opinion was inadequate for adjudication purposes, as discussed in prior Board remands, the Board finds no reason to question the competence or credibility of the examiner. In May 2021, pursuant to a Board remand, an addendum opinion regarding the etiology of the Veteran's psychiatric conditions was obtained. In a somewhat conclusory report, the examiner stated that "it is less likely than not" that the Veteran's psychiatric conditions had their "onset in service or [were] caused by, or [are] otherwise etiologically related to the Veteran's active military service." The examiner based their opinion on the fact that "there is no medical evidence from the time of service or after indicating the presence of any diagnosable mental health disorder." However, the Board notes that the May 2021 examiner erred in two key ways. First, the examiner failed to address the lay statements from December 2014 where both the Veteran and his wife noted changes in his mood and behavior. Second, the absence of evidence does not equate to the evidence of absence. The Board finds this opinion inadequate for adjudication purposes, as the examiner is drawing a negative conclusion based on the lack of evidence. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); See also Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not rely on the absence of evidence as negative evidence). In August 2021, following another Board remand, another medical opinion regarding the etiology of the Veteran's psychiatric conditions was obtained. The examiner noted that the Veteran's feelings after returning from his overseas deployment "are valid but his symptoms did not cause significant distress or impairment to the degree that his level of functioning suffered." The examiner conceded that "there is a degree of normal adjustment for anyone coming out of the service," which includes "having fears, sadness, and anxiety." However, the experience of a life adjustment and those feelings "do not always result in" a mental health disorder. Overall, the Veteran's "behaviors post-service of not suffering from any impairment in his work or social life indicate ... there was no significant distress or impairment." Such distress or impairment is a "critical component to being diagnosed with an actual mental health disorder." Overall, the August 2021 examiner found that the Veteran's current psychiatric disorders are less likely than not caused by, due to, or otherwise related to his active-duty service. The Board finds that the probative medical evidence of record establishes that the Veteran's current acquired psychiatric disorders are not caused by, or otherwise due to, his active duty military service. The Board recognizes that the Veteran experienced mental health difficulties during and shortly after his service, however, numerous medical professionals have determined that the Veteran's current conditions are not related to his mental health complaints from the 1960s. The Board finds that the third Shedden element necessary to establish service connection for an acquired psychiatric disorder has not been met, and service connection is not warranted. The Veteran's claim is denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable in the instant case. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.