Citation Nr: 21073043 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 09-49 401 DATE: December 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depressive and anxiety disorders, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder first manifested in or is otherwise due to her active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric condition have not been 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 in the Navy from March 1978 to March 1983, with subsequent periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a June 2011 travel Board hearing, a transcript of which has been attached to the record. The Board previously remanded this matter to the AOJ for further development in March 2014 and November 2016. The Board then denied entitlement to service connection for an acquired psychiatric disorder in a June 2018 decision, which the Veteran ultimately appealed to the Court of Appeals for Veterans Claims (Court). The Court issued a September 2020 memorandum decision vacating the Board's decision remanding the claim for adjudication. The Board subsequently remanded the matter for further development in April 2021. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that her acquired psychiatric disorder, most recently diagnosed as depressive disorder not otherwise specified with symptoms of anxiety, first manifested in or is otherwise due to her active service. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran's claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Factual Background The Veteran's service treatment records include her February enlistment examination, in which she denied depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping. Upon examination she was found to be clinically normally psychiatrically. October 1979 service treatment records note the Veteran reported having "emotional stress of leaving" for her next duty station. In March 1980 she described marital problems and was referred for counseling. Her March 1982 separation examination is silent for psychiatric issues, and in a concurrent report of medical history she denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Upon examination she was found to be clinically normal psychiatrically. In a June 1983 annual physical for the Navy Reserve, she was found to be clinically normal psychiatrically. In a February 1986 report of medical history, completed for reenlistment in the Navy Reserve, she reported being in fair health but felt "that run down feeling often," though she denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Upon examination she was found to be clinically normal psychiatrically. In a February 1988 examination for reenlistment in the Navy Reserve, the Veteran was found not qualified due to anxiety. In a psychiatric examination approximately one week later, the Veteran reported symptoms of nervousness, difficulty concentrating at times, palpitations, occasional loose stool, difficulty sleeping, early awakening, and a difficult and stressful home situation, including three children with problems. January 1988 treatment records indicate she was seen in the emergency room for an anxiety attack. September 1989 treatment records noted the Veteran described feeling depressed and overwhelmed at home, and that she was the mother three children, including a youngest with special needs. She was diagnosed with situational depression with occasional anxiety. July 1999 treatment records noted the Veteran had depression with anxiety and that she reported chronic anxiety, feeling "stressed out" and depressed, but did not want to speak with anyone because she did not think it would help. She was prescribed Effexor, an antidepressant. January 2003 treatment records include a consultation with a psychiatrist after experiencing several physical issues, including fainting spells. The Veteran reported experiencing mild anxiety for years and treatment with Xanax, though she denied feelings of sadness or depression. The psychiatrist noted the Veteran was married with three children, the youngest of whom was autistic, that she had been treated for 12 years with low-dose Xanax, and that she had sought mental health treatment in 1994 during a period of marital discord. She was diagnosed with social anxiety disorder. May 2006 private treatment records note a diagnosis of depression. In January 2009 a registered nurse reviewed the Veteran's records through July 2007, including her service treatment records. The nurse opined that the Veteran was completely and permanently disabled and noted she experienced mental issues during service, including emotional distress and a referral for counseling, as well as that she was diagnosed with various psychiatric disorders post-service. The nurse did not specifically opine as to the etiology of these disorders. The Veteran was afforded a VA psychiatric examination in August 2009. She reported that she had been prescribed anxiety medication by a Navy doctor and sought individual therapy in 1986 for marital and family issues. The Veteran described her symptoms as paranoia when working, feeling that she was not accepted because she was not a local, and anxiety causing her to avoid dealing with stress. She stated that she worried all the time, mostly about her children, including a non-verbal autistic child and a daughter with bipolar disorder. The examiner diagnosed her with anxiety not otherwise specified based on symptoms of worry and nervousness, which encompassed her symptom of depression. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not related to her active service, as there was no clear link, stating that the primary root of her symptoms was related to the stress of caring for three adult children whom she described as "mentally handicapped" by conditions that included autism and bipolar disorder. During the June 2011 Board hearing, the Veteran reported trouble with depression and anxiety since service. She described herself as "functioning," and noted giving birth to children with disabilities in April 1982, December 1983, and May 1985. January 2012 treatment records note the Veteran had a severely dysfunctional home situation, including an altercation with her husband that resulted in her placement in an in-patient psychiatric hospital for a week. She reported an abusive situation for the past several years of her 30-year marriage and stated that the hardship began after having children and got worse after having her youngest autistic son. The Veteran was afforded an additional VA psychiatric examination in July 2015. She reported that she had a son with "emotional disturbance and learning disabilities," a daughter with bipolar disorder, and a son with autism. She described first seeking mental health treatment inservice for anxiety and "growing pains," and seeking treatment again in the mid- to late- 1980s, when she was prescribed psychotropic medications. The Veteran stated that "a lot had to do with raising children with disabilities and with a non-supportive spouse." The examiner noted that the Veteran's symptoms included depressed mood, anxiety, and excessive thoughts, feelings and behaviors related to her health concerns, providing a diagnosis of adjustment disorder with mixed anxiety and depressed mood, as well as somatic symptom disorder. The examiner opined that the Veteran's acquired psychiatric disorders were less likely than not due to her active service, noting that she talked at length about the chronic stressors of being in an emotionally abusive marital relationship and parenting adult children with disabilities. The examiner stated the Veteran's anxiety and depression were most likely a result of these stressors, and that it appeared she was suppressing her unhappiness and stress with her home life, which was manifesting as somatic complaints and worries. An October 2020 VA psychiatric examination noted the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood. She reported being prescribed medication for anxiety and "mood adjustment" in 1978, which she took for a brief period with no further followup mental health treatment during active duty. She stated she saw a therapist in 1986 or 1987 for marital issues, and that her next mental health treatment was in the mid-1990s for family stressors. She also stated her husband had her "committed for a week under false pretenses" in 2008 or 2010. She described her main problem as stress from having both children and a marriage that are high maintenance, as well as physical health issues. She stated, "I think I am fairly stable minded, if I am depressed at all, I think it is because all of my children have mental disabilities." The examiner did not provide an opinion with regard to the etiology of the Veteran's acquired psychiatric disorder. The Veteran was afforded an additional VA psychiatric examination in September 2021, which noted a diagnosis of unspecified depressive disorder with symptoms of depressed mood, anxiety, chronic sleep impairment and mild memory loss. The examiner noted the Veteran could not recall any mental health problems or treatment that occurred during her time inservice, and that she discussed formally beginning mental health treatment in 1987 due to the stress of trying to raise special needs children, one of whom is autistic and still lives with her, and two others with emotional and behavioral problems or bipolar disorder. She also associated her mental health issues with her multiple physical health issues, including headaches, seizures, and fibromyalgia featuring recurring pain and weakness. The September 2021 examiner opined that the Veteran's acquired psychiatric disorder less likely than not first manifested in or was otherwise due to her active service. Noting a total of two inservice encounters where "emotional distress" was noted due to a uterine bleeding condition in 1979 and a referral for counseling due to marital discord in 1980, the examiner described these instances as due to transient stressors which resolved, as supported by the silence of her separation examination with regard to mental health issues. The examiner observed that the Veteran discussed formally beginning mental health treatment in 1987 due to the stress of trying to raise three special needs children, including one of whom is autistic and still lives at home as well as two others with bipolar or behavioral disorders. The examiner concluded that the Veteran's current mental health diagnosis was related to a range of post-service family and medical stressors. Analysis In the September 2020 memorandum decision, the Court found that the Board erred in relying upon an August 2009 VA medical opinion which found that there was no clear in-service link between the Veteran's service and her current psychiatric disability. The Court explained that the opinion was inadequate because it did not consider October 1979 and May 1980 service treatment records that documented the Veteran seeking mental health treatment as well as a January 2009 private medical opinion submitted by the Veteran. The Court also found that the Board erred in not obtaining the Veteran's Reserve service records which may document that the Veteran was prescribed medications by a Navy doctor, as reported during a July 2015 VA examination. Finally, the Court indicated that the Board erred in not laying a proper foundation before drawing a negative inference from a lack of a documented treatment. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that the Board generally must "first establish a proper foundation for drawing inferences against a claimant from an absence of documentation"). The Board remanded this matter in April 2021 in order to attempt to retrieve the Veteran's reserve service treatment records as well as to obtain an additional expert medical opinion. In September 2021 correspondence, the AOJ informed the Veteran of a formal finding of unavailability regarding her reserve service treatment records after three unsuccessful attempts to retrieve them. The AOJ determined that further attempts to obtain the records would be futile. In instances where a Veteran's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, in this case, the Board finds that the Veteran's reserve service treatment records are not necessary in order to adjudicate her claim. A careful examination of the record reveals that while the Veteran reported she was prescribed psychiatric medication by a Navy doctor, she has indicated this took place in 1978, when she was on active duty. The Board concedes this inservice treatment. Additionally, the Veteran has consistently denied receiving psychiatric medication from her separation from active duty to approximately 1988, when she was hospitalized for an anxiety attack. As her statements regarding post-service treatment have been consistent and are corroborated by treatment records already attached to the claims file, there is no dispute of fact that renders her reserve treatment records necessary. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). After review of the entirety of the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder first manifested in or is otherwise due to her active service. In doing so, the Board finds the VA examiner opinions cumulatively merit substantial probative weight. The opinions, when read together, reflect familiarity with the record, the Veteran's medical history and include adequate rationale. The Board particularly finds the opinion of the September 2021 VA examiner to be highly probative, as it is factually accurate and provides a fully articulated and sound reasoning for its conclusion while addressing both the lay statements and medical history of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, this opinion notes the Veteran's inservice complaint of anxiety and referral for counseling, as well as her numerous statements indicating the great deal of stress caused by raising three special needs children in determining her acquired psychiatric disorder was not due to her active service. The probative value of the opinion that this disorder first manifested after the Veteran's 1983 separation is corroborated by her report of the birth of special needs children in April 1982, December 1983 and May 1984, as well as her statement that she was briefly prescribed medication inservice with no followup, and finally March 1982 and February 1986 reports of medical history in which she denied psychiatric issues. The Board cannot determine that lay evidence lacks credibility because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the September 2021 examiner's opinion that her two inservice episodes of mental health treatment were transient and not the onset of her current psychiatric disorder is corroborated by fact that she explicitly denied any psychiatric symptoms during March 1982 and February 1986 reports of medical history. In this case, the Board finds that if the Veteran were still experiencing symptoms of anxiety or depression, she would have reported them during her separation and 1986 reenlistment examinations, as she did during her February 1988 reserve reenlistment examination. See Fountain, 27 Vet. App. at 272 (noting that the absence of evidence can constitute substantive negative evidence when a missing fact is one that would have ordinarily been recorded). The Board observes that the Veteran has reported first experiencing psychiatric symptoms inservice and believes that this represented the onset of her current acquired psychiatric disorder. However, as noted above, the expert VA examiners have cumulatively found that her current psychiatric disorder was caused by post-service issues, including marital difficulties and raising three children with special needs. While the Veteran has stated on at least one occasion that she has experienced psychiatric difficulties "since service," the Board finds her denial of relevant symptoms during her active-duty separation and 1986 reserve reenlistment examinations to be more reliable and probative than the more recent lay statements made in support of her claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Although the Board concedes that the Veteran received treatment for anxiety and marital issues inservice, a competent medical expert has concluded that these instances were not the initial manifestation of her current acquired psychiatric disorder. The January 2009 private registered nurse statement, while noting these instances, does not provide an opinion one way or the other regarding etiology. The only opinion contrary to that of the VA examiners is the Veteran's, and while she is competent to report past symptoms and their treatment, she does not have the medical training necessary to diagnose an acquired psychiatric disorder or to determine whether her inservice symptoms were the manifestation of a diagnosable medical condition such as depressive disorder. This issue is medically complex, as it requires medical training and knowledge of the pathology of the human body. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Similarly, it is not the place of the Board to substitute its own inadequate lay knowledge for that of the Veteran. Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, the Board finds that the VA opinions are probative evidence in the matter, and in the absence of probative evidence to the contrary, are persuasive. Particularly, the probative September 2021 expert opinion of record indicates that the Veteran's psychiatric disorder manifested after her separation and is due to post-service familial and health issues. The Veteran has indicated her inservice mental health treatment was brief and without followup, and she denied psychiatric issues during separation and post-service examinations. As a preponderance of the evidence is against finding her acquired psychiatric disorder first manifested in or is otherwise due to her active service, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App at 53. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.