Citation Nr: 21068523 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-44 972 DATE: November 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder, is denied. FINDING OF FACT The preponderance of the probative evidence is against finding that an acquired psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to May 1956. The U.S. Department of Veterans Affairs (VA) has determined that only the period of service between January 7, 1952, and January 6, 1954, is considered honorable for VA purposes. 38 C.F.R. § 3.12. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision by a VA Regional Office (RO). The Veteran died in September 2016. The appellant is his surviving spouse and has been substituted into the claim on appeal. In April 2019, the appellant testified in a hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. This matter was previously before the Board, most recently in May 2021, when remanded for further development. The Board finds that the RO substantially complied with its remand order. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder, is denied. The Veteran contends that an acquired psychiatric disorder began during service. The Veteran contends a personal assault caused an appendix rupture in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of moderate recurrent major depression, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. VA records show the Veteran was not diagnosed with moderate recurrent major depression until July 1993, nearly four decades after the Veteran's honorable service. While the Veteran is competent to report having experienced symptoms of depression, insomnia, and feelings of uselessness, hopelessness, and worthlessness intermittently since childhood, the Veteran is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of moderate recurrent major depression that began in service. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the several VA opinions of record establish that the Veteran's moderate recurrent major depression is not at least as likely as not related to an in-service injury, event, or disease, including an alleged personal assault. The September 2020 and April and August 2021 VA examiners opined that the Veteran's moderate recurrent major depression was not at least as likely as not related to honorable service. Findings in their totality reveal that the Veteran had endorsed onset of depression to be in childhood due to sexual abuse and death of father; however, at the January 1952 enlistment examination, the Veteran was found qualified for enlistment in the Marine Corps. The VA examiners found service treatment records and separation examination were unremarkable for mental health issues, diagnosis, or treatment for the period of January 1952 through January 1954. Service treatment records were also unremarkable for mental health diagnosis or treatment during his service from January 1954 through April 1956. Military personnel records documented an April 1954 failure to obey a lawful order for possession of alcoholic beverages, but there was no record of substance abuse noted for the January 1952 through January 1954 period. There was no record of a mental disorder or treatment prior to enlistment and the Veteran was found qualified for enlistment. There was no evidence to support onset of an acquired psychiatric disorder prior to enlistment or during Veteran's honorable period of service. There was also no consistent report of ongoing mental health problems since military service nor evidence that the Veteran had pursued mental health services or was diagnosed with a mental disorder until about 40 years later. In 1979, an employer's letter mentioned that the Veteran had reported problems during and after service, but had recovered from an illness, was an "excellent employee," and had been "extremely helpful to other individuals suffering from alcoholism." There were no other references of mental health symptoms or treatment from this time. Therefore, the VA examiners found no nexus between Veteran's military service and the psychiatric symptoms and diagnosis 40 years later. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A December 2020 VA examiner was not able to rule out whether honorable service may have aggravated a preexisting psychiatric disorder, the April and August 2021 VA examiners found that the presumption of soundness applied in this case because the Veteran was found fit for service and there was no undebatable evidence that Veteran entered service on January 1952 with an acquired psychiatric disorder. There was no evidence of a diagnosis of depression nor treatment for depression prior to enlisting in the military service. At the Veteran's January 1952 enlistment examination, the Veteran was found to not have a psychiatric disorder and had denied a history of depression, other mental health symptoms, and mental health treatment on the report of medical history. Further, when the Veteran was formally diagnosed with major depression in July 1993 both during the VA examination and upon initiating mental health treatment, the Veteran did not report depression dating back to childhood. At the July 1993 VA examination, the Veteran was oriented to all spheres, but appeared disheveled and older than stated age. The Veteran did exhibit episodes of loss of concentration during the interview. The Veteran was very soft spoken with monotonous tone, although thoughts were well organized. The Veteran's affect was constricted and sad and mood markedly depressed. The Veteran denied suicidal ideations and the VA examiner found no evidence of any psychosis. The VA examiner estimated the intellectual level of functioning was within the average to low average range. The Veteran's insight and judgment were "fair." While the July 1993 VA examiner opined that his father's death in 1951 and his mother's death in 1984 were triggers for his recurring depression, the VA examiner did not note an onset date of the Veteran's major depressive disorder. Further, while his father died in 1951, the Veteran did not evidence a psychiatric disorder upon enlistment, only three months afterwards, which does not support an onset of major depressive disorder following the death of the Veteran's father. The Board gives greater probative weight to the more recent VA medical opinions because, in 2021, the VA examiners had access to a more complete medical record than did the December 2020 VA examiner. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran is competent to report that an in-service personal assault, the reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). He has alleged he was assaulted which resulted in hospitalization due to a burst appendix. The personal assault allegation is without probative value. The Veteran's service treatment records regarding the appendix indicate that the condition came on progressively. There is no evidence that the appendix burst or was in any way linked to an injury of any kind. There is no evidence that the Veteran was beaten during the period of good service. The Board finds that, if the Veteran had in fact been assaulted and this resulted in an injury to the appendix, this would have been recorded in the medical records. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The records are explicit in indicating the appendix disorder came on gradually. (Continued on the next page) While the Veteran and spouse believes the moderate recurrent major depression is related to honorable service, the Board reiterates that the preponderance of the probative evidence weighs against findings that an in-service personal assault occurred during this period of service. Accordingly, entitlement to service connection for an acquired psychiatric disorder is not warranted. The preponderance of the probative evidence is against the claim and it is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.