Citation Nr: 21069080 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-23 343A DATE: November 17, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), an anxiety disorder, and/or a mood disorder. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), an anxiety disorder, and/or a mood disorder is denied. FINDINGS OF FACT The Veteran's acquired psychiatric disorder, to include major depressive disorder (MDD), an anxiety disorder, and/or a mood disorder, was not diagnosed until many years after service, and has not been shown to be attributable to her active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to major depressive disorder (MDD), an anxiety disorder, and/or a mood disorder are not met. 38 U.S.C. §§ 1111, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from December 1988 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. Following the March 2014 rating decision, the Veteran filed a timely Notice of Disagreement (NOD) in September 2014. She was issued a statement of the case (SOC), and she filed a timely VA Form 9 in July 2015. In the VA Form 9, the Veteran requested a hearing. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. The Veteran's prior claims of entitlement to service connection for an anxiety disorder, major depressive disorder, and mood disorder (not otherwise specified) were each certified to the Board, in addition to entitlement to an initial compensable disability rating for service-connected tinea pedis of the left foot. The Board recharacterized the multiple psychiatric disability claims into the singular claim of entitlement to service connection for an acquired psychiatric disorder, to include to include major depressive disorder (MDD), an anxiety disorder, and/or a mood disorder. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). Those claims were then remanded by the Board in May 2019 for additional development and adjudication. The claims returned to the Board in June 2020. The Board found that substantial compliance with the Board's remand directives had been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board then denied entitlement to service connection for the acquired psychiatric disorder and denied entitlement to an initial compensable disability rating for service-connected tinea pedis. The Veteran appealed her claims to the United States Court of Appeals for Veterans Claims (Court), and in a July 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the Board's June 2020 Decision that denied entitlement to service connection for an acquired psychiatric disorder and remanded it to the Board for further adjudication. The portion of the June 2020 Decision that denied entitlement to an initial compensable disability rating for tinea pedis remains undisturbed and is not currently on appeal. Thus, the claim as referenced on the title page has returned to the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), an anxiety disorder, and/or a mood disorder. The Veteran is claiming that she is entitled to service connection for an acquired psychiatric disorder, to include major depressive disorder, an anxiety disorder, and/or a mood disorder. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303 (a). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include psychoses, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For psychoses, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). Service connection for such chronic disease as psychosis can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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, (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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the first element for service connection, the Veteran's claims file includes a note from a private clinical psychologist from October 2012. The private psychologist noted that she had assessed the Veteran in a 90-minute session, and the Veteran "brought papers relevant to her history and emotional issues in the past." The private psychologist diagnosed the Veteran at the time with post-traumatic stress disorder (PTSD) and "mood disorder not otherwise specified." The Veteran was then seen for a PTSD evaluation in February 2014. This VA Psychologist conducted an in-person review of the Veteran and did not find that the Veteran had a current diagnosis of PTSD. The VA examiner did however diagnose the Veteran with a "major depressive disorder, recurrent, severe with psychotic features." At a follow up to this session, in October 2014, the VA psychologist added the diagnosis of "paranoid personality disorder." The Veteran was seen in November 2014 for a VA psychiatric session. During this session a VA registered nurse conducted psychiatric screenings of the Veteran. The VA nurse diagnosed the Veteran with adjustment disorder, depressive disorder, anxiety disorder, and paranoid personality disorder. The Veteran's claims file also includes a VA psychology note from December 2014. During the 60-minute session provided, the VA psychologist diagnosed the Veteran with "major depressive disorder; paranoid personality disorder." One month later, in January 2015, the Veteran was given a follow-up to the previous VA psychology note. During this session, the VA psychologist conducted an in-person evaluation, and diagnosed the Veteran with major depressive disorder with psychosis, and "paranoid personality disorder." The VA psychologist further documented anxiety, writing that the Veteran had Previous stressful experiences when military and being called "stupid" and forced out of a military training [which] have increased her level of performance anxiety and trepidation in dealing with others. At workplace she has been called stupid, too. This anxiety and inability to deal with the name calling has depressed her. The Veteran was seen for a VA follow-up screening in April 2016. During the screening, a VA registered nurse noted the Veteran to have "depression, anxiety," and had a history of psychiatric hospitalization. In that same month, the Veteran was given a neurology consult with a VA examiner. The VA examiner mentioned the active problems that the Veteran was experiencing, which included depressive disorder, anxiety, and "paranoid personality disorder." This VA examiner also documented her history of depression, associated with psychosis, as she was "hospitalized 2 years ago and again 1 year ago triggered by stressors." Therefore, while the Veteran has an extensive psychiatric history, she has met the first criteria for entitlement to service connection, insofar as she has a current diagnosis of, at the very least, depression. 38 C.F.R. § § 3.303 (a). Turning to the second criteria for entitlement to service connection, the Veteran testified before the undersigned Judge in January 2019. The Veteran testified that she was mistreated and bullied during her military nursing school due to her sexuality, and that this caused her to leave the service. She specifically testified that a senior officer took me outside and he threatened me. He told me I'm going to make sure that you fail and that you wind up scrubbing the bottom of a ship; I couldn't believe that that instructor would do that to me and for no reason other than I thought that he thinks that I'm gay. Then later when the Veteran attempted to enroll in nursing school again as a civilian, "all the things started coming to me and I couldn't handle anything. I was just like very depressed and having thoughts of just not wanting to." Therefore, the Veteran is claiming that, in essence, she was forced out of the military for her sexuality, and when she wanted to pursue a career later in life, it brought up negative feelings associated with her discharge, including the claimed psychiatric disorders. The Veteran's Certificate of Release from Active Duty (DD-214) shows that the Veteran was released from duty on September 15, 1989. The received an honorable discharge, and the stated reason was "homosexuality." Therefore, the Veteran has testified as to an in-service event which has also been confirmed by her service records. Thus, she has met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303 (a). Turning to the third criteria for service connection, the Veteran's claims file contains three opinions as to the etiology of her acquired psychiatric disorder. First, and as noted above, the Veteran was seen by a private psychologist in October 2012. The private psychologist assessed the Veteran during a 90-minute session, and had access to, at least some, of the Veteran's case file "relevant to her history and emotional issues in the past." After the psychologist diagnosed PTSD and "mood disorder not otherwise specified," the psychologist wrote that "both of these disorders appear to have been induced by sexual harassment that [the Veteran] suffered during the nine months she served in the United States Navy." The psychologist then continued that these "symptoms of trauma have re-emerged since [the Veteran] re-enrolled in school." Thus, this private psychologist attributes the current psychiatric disorder, specifically the mood disorder, to the Veteran's service. The private psychologist also reflected the later testimony from the Veteran, stating that these symptoms resurfaced when the Veteran thought about going back to school. The Veteran's claims file also includes an evaluation from a VA psychologist in March 2014, who provided an in-person evaluation after reviewing the Veteran's claims file. During this evaluation, the VA psychologist denied the presence of PTSD, but did find that the Veteran had a diagnosis of "major depressive disorder, recurrent, severe with psychotic features." The examiner also checked that the Veteran did not have more than one mental disorder. During the exam, the Veteran noted that she continues to struggle with "some feelings of depression and anxiety, stating 'it's not 100 [percent] but it's gotten a lot better.'" The VA examiner also wrote that the Veteran Described perceived mistreatment while in the military. She did not endorse sexual harassment or any type of unwelcome verbal or physical conduct of a sexual nature during her time with the military. Nor did she describe exposure to actual or threatened death, serious injury, or sexual violence based on the previously described information, it is less likely than not that the diagnosis of major depressive disorder is related to her reported in-service experiences. The VA psychologist referenced a report from March 2013 indicating that the Veteran struggled with depression after the death of her father, however they did not attribute, nor refute, that this was an intervening cause to her current diagnosis. Finally, the VA psychologist paid special recognition that her claims file included "several documents pending scanning," which were not "available to this examiner." Finally, and as discussed in the introduction, the Veteran's claim was remanded in May 2019 for an additional etiological opinion. That VA examination occurred in December 2019. The Veteran was seen in person, and it is clear from the report that the Veteran's claims file was reviewed. The December 2019 VA psychologist confirmed the Veteran's diagnosis of major depressive disorder, severe with psychotic features. A detailed symptomatology was taken, and the Veteran's lay statements are featured in the report. The VA psychologist then denied that the Veteran's confirmed diagnosis was at least as likely as not due to her in-service injury. The VA psychologist provided a detailed rationale, that included a discussion of the Veteran's lay statements, her service, and the reason she was "kicked out of the military," as indicated on her DD-214. The VA psychologist cited medical reports from June 1989, whereby the Veteran stated that she "hated the Navy and wanted to get out," and that she "may try to kill herself if not let out of the service." From these reports, the Veteran denied harassment, sexual or otherwise, including any "harsh treatment from a commanding officer." The VA psychologist further indicated that "she herself initiated and desired to be released from her military service," rather than commanding officers "attempting to 'get rid of her' against her will." As such, the VA psychologist opined that the current diagnosis of major depressive disorder is not due to the Veteran's military service, including to the in-service injury which the Veteran has described. The Board notes that the private psychologist's report from October 2012 based their opinion on different diagnoses than that which has been already confirmed by the Board. They also appear to have based their report predominantly on the subjective statements of the Veteran, as opposed to the objective evidence within the Veteran's claims file. As such, the private psychologists report is afforded minimal probative weight. The March 2014 VA examination based their opinion on the correct diagnoses, however admitted that they did not have fully access to the claims file, as "several documents [were] pending scanning." As such, the Board also affords the March 2014 VA examination some probative weight. The most recent VA examination from May 2019 however had full access to the Veteran's claims file, which was clear from their citation to relevant evidence. It also provided a detailed rationale, specifically for the correct diagnoses of the Veteran, and also considered her lay statements. There is no evidence that the May 2019 examiner was not competent or credible, and as such, their report is entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran's acquired psychiatric disorder is not at least as likely as not related to her active-duty service. The Board recognizes that the Veteran's claims file does include the positive etiological opinion from the October 2012 private psychologist, to which minimal probative weight has been afforded. Having said that, the negative etiological opinion from March 2014 has also been afforded some probative weight in the Board's analysis. As a result, the Board made both reports available to a third examiner, the May 2019 VA psychologist, who reviewed the evidence available and then provided a detailed, negative etiological opinion. The Board has also afforded that May 2019 opinion significant probative weight as to the etiology of the Veteran's disability. Finally, as discussed in the introduction, a July 2021 Court JMPR vacated the portion of the Board's prior denial. This was because the Board had not discussed whether the Veteran was entitled to service connection based on the theory of continuity of symptomatology. The JMPR cited evidence of psychosis, which is a chronic disease listed under 38 C.F.R. § 3.309 (a); See Walker v. Shinseki, 708 F.3d 1331 (2013). The JMPR specifically cited the following pieces of evidence: The March 2014 VA examination which diagnosed MDD, recurrent, severe with psychotic features; the April 2016 VA examination that documented a "history of depression, associated with psychosis;" and finally the December 2019 VA examination that confirmed a diagnosis of MDD, severe with psychotic features. Considering the evidence cited in the July 2021 JMPR, the Board finds that the record reasonably raises the theory of entitlement to service connection of a chronic disease through continuity of symptomatology. See Walker, Id. Having said that, the Board finds that the Veteran's psychosis, was not diagnosed, nor indicated as a symptom, until many years after service. The Veteran separated from service in September 1989, and her initial claim for entitlement to service connection for a psychiatric disorder, regardless of how it was claimed, was in September 2012. The earliest evidence of a diagnosis of a psychiatric disorder was from a private psychologist from October 2012, and that diagnosis was PTSD and a mood disorder, not otherwise specified. Psychosis was not noted as a symptom. The Veteran's claims file indicates that she started taking the anti-depressant medication Trazodone in August 2013 following her diagnoses. Her initial intake assessment for psychiatric counseling is from January 2013. Even the evidence that the Court has cited in the JMPR begins in March 2014, followed by citations from April 2016 and then from December 2019. Thus, even affording the Veteran the benefit of the doubt, the earliest evidence of a psychiatric disorder is from her initial diagnosis in October 2012. The Board notes this to be approximately twenty-three years following her separation from service. Thus, while the theory of entitlement to service connection based on continuity of symptomatology has reasonably been triggered by the various evidence noting "psychosis," the Board finds that the acquired psychiatric disorder, as variously diagnosed, did not arise within one year following service, and was not diagnosed until many years after her separation from service. Likewise, continuity of symptomatology can also therefore not be established. As such, the Veteran has not met the third and final criteria for entitlement to service connection under the presumptive theory. 38 C.F.R. §§ 3.303, 3.307, 3.309. As a result, the Board finds that the preponderance of the available evidence is against a finding that the Veteran's current diagnosis is at least as likely as not related to her active-duty service. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.