Citation Nr: 21068410 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-05 851 DATE: November 10, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for a hiatal hernia (claimed as secondary to an acquired psychiatric disorder) is denied. Service connection for a gastrointestinal condition (claimed as secondary to an acquired psychiatric disorder) is denied. Service connection for acid reflux (claimed as secondary to an acquired psychiatric disorder) is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran's acquired psychiatric disorder was incurred in or is causally related to his service. 2. There is no underlying service-connected disability from which to establish proximate causation or aggravation of a hiatal hernia. 3. There is no underlying service-connected disability from which to establish proximate causation or aggravation of a gastrointestinal condition. 4. There is no underlying service-connected disability from which to establish proximate causation or aggravation of acid reflux. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a hiatal hernia have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a gastrointestinal condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for acid reflux have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. The matters are on appeal from July 2012 and June 2014 rating decisions. The Veteran's service connection claims were denied by the Board of Veterans' Appeals (Board) in a November 2018 decision. The parties filed a Joint Motion for Partial Remand to the Court of Appeals for Veterans Claims (CAVC). In an August 2019 decision, CAVC vacated the portion of the Board's decision denying the appeals listed on the title page of this decision and remanded the case for compliance with the Joint Motion. CAVC held that vacatur and remand were required because the Board erred by providing an inadequate statement of reasons or bases when it denied entitlement to service connection for an acquired psychiatric disorder. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Furthermore, CAVC held that because the Veteran claimed entitlement to service connection for a gastrointestinal condition, hiatal hernia, and acid reflux as secondary to his claimed acquired psychiatric disorder, those issues should be remanded as inextricable from the issue of entitlement to service connection for an acquired psychiatric disorder. See Gurley v. Nicholson, 20 Vet. App. 573, 575 (2007). Considering these findings of error, the Board remanded these matters in July 2020, April 2021 and July 2021 for further development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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 alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all of the evidence in the claims file, including the medical and lay evidence, to determine its probative value. 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; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). 1. Service connection for an acquired psychiatric disorder The Veteran's medical treatment records reflect that he has been diagnosed with depression. A March 2011 assessment by Dr. L at NKL Neurology PLC noted that the Veteran was diagnosed with severe depression. During the assessment the Veteran complained of worsening depression and reported that he had gone through counseling multiple times and has not seen a psychiatrist for a long time. He stated that in the past, he was treated with different antidepressants, also lithium and Seroquel. During a June 2010 neurology consult, the examiner reported that the Veteran has been on Effexor XR generic 150 milligrams a day for the past 10 years because of significant problems with anxiety and depression that are much worse in the past 4 months. A June 2010 letter from Scottsdale Neurological Consultants noted that a review of the Veteran's systems showed a positive diagnosis for depression. An October 2011 depression screen reflected a diagnosis of mild depression. An authorization and consent for release of information form notes that the Veteran has received treatment for depression as early as 1985. A September 2012 VA treatment note showed that the Veteran reported, "Three previous inpatient stays: 1979, 1999, and April 2012. [The Veteran] reported experiencing suicidal ideation each time before voluntarily checking himself into inpatient" (see September 5, 2012, suicide risk assessment note). Similarly, a March 2012 VA treatment note showed, "[The Veteran] shared that twice he took himself to be admitted for inpatient treatment for depression, once 30 years ago and the second time 15-20 years ago" (see March 30, 2012, suicide risk assessment note). The Veteran was examined by a VA psychologist in October 2020. The examiner diagnosed unspecified depressive disorder with anxious distress with chronic pain being relevant to the management of this disability. The Veteran reported no psychiatric treatment prior to service or behavioral issues during his service. The examiner opined that it is less likely than not that the Veteran's psychiatric disorder was incurred during service or is causally related to his service. The examiner explained that there is no evidence of reports or treatment for symptoms of depression during service and that his first psychiatric treatment occurred 11 years after service in 1979. During that treatment the Veteran reported a history of memories related to childhood trauma and that there are no reported events during service that would account for his symptoms of depression and anxiety. The examiner ultimately found no basis for a nexus between his current acquired psychiatric disorder and any elements of his service. The Veteran's representative submitted a March 2021 correspondence taking issue with the October 2020 VA psychologist's negative nexus opinion. The representative contended that is likely that the Veteran's depression existed prior to 1979 and went undiagnosed and untreated because it is unlikely that the Veteran would have suddenly developed suicidal ideation without a preexisting psychiatric disorder. In a May 2021 opinion, the same VA psychologist who authored the October 2020 negative nexus opinion again found it to be less likely than not that the Veteran's psychiatric disorder was incurred during service or is causally related to his service. The examiner acknowledged the lack of evidence of symptoms or diagnosis for a psychiatric disorder in the Veteran's STRs. The examiner found there to be no association between the Veteran's diagnoses of anxiety and dysthymic disorder and his period of active service. The examiner also cited to treatment records from VAMC Phoenix that are suggestive of a relationship between his acquired psychiatric disorder and chronic pain. In August 2021, a different VA psychologist provided the Veteran with an in-person psychological examination. Following this examination and after a review of the claims file, the examiner opined that it is less likely than not the Veteran's acquired psychiatric disorder had its onset in service, is related to the Veteran's reported in-service stressors, or is otherwise related to his active service. The examiner found that the medical evidence provides no basis for finding a nexus between a current acquired psychiatric disorder and the Veteran's service. The examiner noted that the Veteran's STRs documented no mental health concerns during service and specifically at separation from service. The examiner also emphasized that during the examination the Veteran was not sure whether his mental health symptoms began during his active service; thus, effectively considering the Veteran's lay statements. After a review of the pertinent lay and medical evidence of record, the Board finds that the preponderance of the competent evidence of record weighs against finding that the Veteran has a current acquired psychiatric disorder that is causally related to his service. In this regard, the Board ascribes significant probative value to the findings of the two separate VA psychologists that provided the Veteran with psychological evaluations. These mental health professionals both opined that it is less likely than not that the Veteran has an acquired psychiatric disorder that was incurred during service or is otherwise causally related to his service. To restate, neither examiner found any evidentiary basis to substantiate a nexus between a current acquired psychiatric disorder and the Veteran's service. Moreover, other factors such as chronic pain, noted by VA providers, and a history of unresolved childhood trauma, noted in his earliest mental health treatment, were suggested as being possible contributory causes for the Veteran's current acquired psychiatric disorder. The Board is particularly deferential to these findings because they were made by mental health professionals with an expertise in diagnosing and treating psychiatric disabilities. Additionally, there is no competent medical evidence to weigh against the conclusions of the VA psychologists and the Board finds these opinions to be probative on the issue of direct service connection. Again, these examiners' opinions were authored after interviews with the Veteran, a review of the medical evidence of record, and are based on their training, experience, and expertise as specialized mental health professionals. The Board has considered and weighed lay contentions made by the Veteran through his representative that the Veteran's acquired psychiatric disorder may have been undiagnosed and untreated prior to his first documented mental health treatment in 1979. His representative has also alluded to a possible in-service stressor. To date, this potential stressor has not been described by the Veteran during either VA psychological examination or through a supporting statement. It is not documented in any STRs or military personnel records. Moreover, the mere suggestion by his attorney that the Veteran's acquired psychiatric disorder may have preexisted his initial mental health treatment in 1979 is not sufficient to establish an in-service incurrence of this disability or a causal relationship with his service. Any probative value of such speculation is outweighed by the previously discussed competent findings of the VA psychologists of record. As it pertains to psychiatric disorders, lay testimony and lay opinions are not sufficiently probative to establish etiology because this determination requires specialized medical expertise and training which the Veteran and his representation have not been shown to possess. 38 C.F.R. § 3.159 (a)(1); See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In addition, there is otherwise no adequate medical opinion (i.e., a clinical opinion based on review of pertinent medical records containing an adequate rationale) that substantiates the nexus element (causal relationship) of the Veteran's direct service connection claim. Based on the foregoing, the preponderance of the evidence weighs against finding that service connection is warranted for an acquired psychiatric disorder and this claim must be denied. Because a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Service connection for a hiatal hernia (claimed as secondary to an acquired psychiatric disorder) 3. Service connection for a gastrointestinal condition (claimed as secondary to an acquired psychiatric disorder) 4. Service connection for acid reflux (claimed as secondary to an acquired psychiatric disorder) The Veteran has maintained that the above-listed disabilities are proximately due to or aggravated by an acquired psychiatric disorder on a secondary service connection basis. Successful claims for secondary service connection require, as a threshold matter, an underlying service-connected disability from which to establish a causal nexus. Pursuant to this decision, service connection for an acquired psychiatric disorder has not been found to be warranted. Accordingly, the Veteran's above-listed claims for secondary service connection must also be denied. 38 C.F.R. § 3.310 (a). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.