Citation Nr: 21070339 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-25 145 DATE: November 23, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include alcohol abuse disorder, major depressive disorder, and posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT The Veteran does not have a diagnosis of PTSD; the preponderance of the evidence is against a finding that his diagnosed alcohol abuse disorder and major depressive disorder were caused by his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include alcohol abuse disorder, major depressive disorder, and posttraumatic stress disorder (PTSD) are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded the Veteran's appeal to the RO for further evidentiary development. In addition to the claim for service connection for PTSD, the record also reflects diagnoses of alcohol use disorder and major depressive disorder, mild. See C&P Exam, October 15, 2016. As such, the Board has expanded the Veteran's claim to include the matter of entitlement to service connection for an acquired psychiatric disorder other than PTSD and has recharacterized the issue accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include alcohol abuse disorder, major depressive disorder, and posttraumatic stress disorder (PTSD) The Veteran contends that he has an acquired psychiatric disorder which was caused by his witnessing a murder during active service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Turning to the evidence, on enlistment the Veteran denied any depression, excessive worry or nervous trouble, and his enlistment examination found no psychological abnormalities. On separation from service in December 1969, the Veteran denied any psychological symptoms and his psychology was again found normal on examination. An April 1968 service treatment record states that the Veteran "witnessed a murder which has caused nightmares, etc." In April 1972, a private psychiatrist wrote to state that he was treating the Veteran in therapy and had provided therapy intermittently since December 1970. The psychiatrist stated that the Veteran has having conflicts with his wife and diagnosed adjustment reaction of adult life. The psychiatrist stated that the prognosis for resolving some of the conflicts was good. In July 2016, the Veteran wrote to VA to discuss his PTSD stressor event. He said that he witnessed a murder during his service and that he testified for the prosecution at trial. The Veteran said that the defendant was found guilty but that he threatened to find the Veteran in the future. The Veteran said that his wife was afraid that they would be attacked and that this led to problems in the marriage and that the Veteran attempted suicide with aspirin. The Veteran stated that he attended therapy after the suicide attempt, which he said was more than 45 years ago. VA prepared an Initial Disability Benefits Questionnaire for PTSD in October 2016. The examiner discussed the murder that the Veteran witnessed during his service and discussed the Veteran's subsequent family and work and social history. The examiner found that the Veteran met DSM-5 criteria for diagnoses of alcohol abuse disorder and major depressive disorder, mild, but did not meet the criteria for PTSD because his trauma symptoms were subthreshold, and he did not meet Criteria C (avoidance of stimuli), D (negative cognitive/mood alterations), or E (arousal and reactivity). A medical opinion was also prepared in October 2016. The examiner opined that it was less likely than not that the current alcohol abuse disorder and major depressive disorder were incurred during or caused by his active-duty service, including witnessing the murder. The examiner's rationale was that the Veteran's statements indicate that his alcohol use and depressive symptoms are related to recent stressors including marital strive and unhappiness with his career. The Veteran reported that his increased alcohol use began in approximately 2013 after his third marriage and accompanying marital strife. The examiner stated that the Veteran's depressed mood is also related to his marital problems, and the Veteran indicated that he is primarily concerned about his wife's health and her indifference to her health. The Veteran also stated that he is discouraged with his career as an actor because he has not been offered more roles at this time. The Veteran filed a VA Form 9 Substantive Appeal in May 2017. In it, he stated that his PTSD is caused by the traumatic experience of witnessing a murder. The Veteran said that he suffers from major depression because he witnessed the murder. VA treatment records indicate that the Veteran was first evaluated for a psychiatric condition in October 2016 and that he has received VA treatment from June 2017 forward. Applying the criteria for service connection, the Veteran does not have a diagnosis of PTSD. Therefore, service connection for PTSD under the provisions of 38 C.F.R. § 3.304(f) is not available. Applying the criteria for direct service connection, the Veteran has current diagnoses of alcohol abuse disorder and major depressive disorder, mild. The Veteran's testimony and the April 1968 service treatment record demonstrate that he witnessed a murder during his active-duty service. Thus, the first two elements of direct service connection have been established. Saunders, 1361. However, the evidence is against a finding that the Veteran's current alcohol abuse disorder and major depressive disorder are caused by or onset during his active-duty service. The Veteran reported nightmares in April 1968, but in his separation medical history prepared in December 1969, the Veteran denied frequent or terrifying nightmares, depression or excessive worry, frequent trouble sleeping, and nervous trouble of any sort. The December 1969 medical examination found no psychiatric abnormalities. The VA medical opinion that the Veteran's current symptoms are caused by current marital and career issues holds substantial probative value because it is based on an examination of the Veteran and a review of his treatment records and a detailed social, family, and occupational history. There is no competent medical evidence indicating that the Veteran's current alcohol abuse disorder and major depressive disorder are related to his active-duty service. In the VA Form 9 Substantive Appeal filed in May 2017, the Veteran opined that witnessing the murder in 1968 caused his current alcohol abuse disorder and major depressive disorder. However, the Veteran has not demonstrated expertise in diagnosing medical conditions. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of psychiatric disorders falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Furthermore, the competent, credible evidence of record (the 2016 VA examiner's opinion) shows that the Veteran's alcohol abuse began around 2013 after marriage to his third wife and having marital strife. As the evidence is against finding a nexus of causation, service connection is denied. REASONS FOR REMAND Entitlement to service connection for migraine headaches is remanded. The Board's March 2020 remand order directed the RO to request that the Veteran complete a VA Form 21-4142 for Dr. R. A. and any other clinicians who have recently treated him for his headaches and acquired psychiatric disorder. VA has received the records in November 2021. The RO should schedule a new medical opinion upon considering the new evidence (private treatment records). The matter is REMANDED for the following actions: 1. Obtain a medical opinion to determine the nature and etiology of any headaches. The electronic claims file, including a copy of this decision and remand, should be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After a review of the record, the examiner should provide the following opinions: (a.) Whether there is clear and unmistakable (obvious or manifest) evidence that any diagnosed headache disorder, including migraine headaches, preexisted the Veteran's period of active-duty service (from January 1967 to January 1970). (b.) If the answer is that a diagnosed headache disorder, including migraine headaches preexisted service, then is there clear and unmistakable (obvious or manifest) evidence that any such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during the above noted period of active-duty service (i.e., the disability was not aggravated by service). (c.) If the answer to questions (a) and (b) is "no," then is it at least as likely as not (a 50 percent probability or greater) that any diagnosed headache disorder, including migraine headaches, is related to the Veteran's active-duty service, to include his fall down a flight of stairs and hitting his head in June 1967? The Veteran's service treatment records should be addressed, including his entrance examination, the June 1967 entry concerning his fall down a flight of stairs, a December 1967 emergency room visit, and his separation examination. The Veteran's statements should also be addressed, including his statements that he had repeated episodes of severe headaches following the June 1967 incident and his visit to the emergency room. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Following the development directed above, readjudicate the Veteran's claims. If the claims remain denied, issue an SSOC addressing the issues. The SSOC should clearly note all of the new evidence that has been reviewed. The Veteran and his representative should be given an opportunity to respond, before the case is returned to the Board. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.