Citation Nr: 21073693 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-53 626 DATE: December 10, 2021 ORDER Service connection for an acquired psychiatric disorder (claimed as depression), as secondary to the service-connected total abdominal hysterectomy/bilateral salpingo-oophorectomy ("hysterectomy") is denied. FINDING OF FACT A psychiatric disability was not shown during service or for many years thereafter, and the most probative evidence is against finding that the current psychiatric disorder is related to service or caused or aggravated by the service-connected hysterectomy. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in March 2021 for further development. 1. Service connection for an acquired psychiatric disorder, as secondary to the service-connected hysterectomy Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for an acquired psychiatric disorder, as secondary to her service-connected hysterectomy. Service connection for a total abdominal hysterectomy/bilateral salpingo-oophorectomy was established in a February 2014 rating decision. The Veteran asserts, in essence, that she experienced psychiatric symptoms after undergoing a full hysterectomy in 1988, which is one year after her discharge from service and that her psychiatric symptoms have persisted since that time, although she did not seek treatment for her symptoms until 2013 or 2014. In December 2015 and October 2016 statements, she asserted her psychiatric disorder is related to her hysterectomy because she is no longer able to produce the hormones necessary for mental health. During the January 2020 Board hearing, she testified that she experienced depression, fatigue, irritability, chronic anger and sleep problems during the last 3 to 4 years of service; that she experienced gynecological pain from the surgeries she had during service, which added to her depression, although she did not quite understand it at that time; and that during service she experienced a miscarriage/tubal pregnancy and end to a relationship, which added to her depressive symptoms. She also testified that she underwent a full hysterectomy in 1988, one year after discharge, after which her mood started to change and symptoms worsened; that she did not seek treatment until approximately 2014 due to the stigma associated with mental health treatment; that her psychiatric symptoms have persisted since she left service; and that she wanted to take her own life twice, once "right after service" although her father talked her down and she did not seek treatment at that time due to the stigma, and then again several years ago, when she was admitted to a VA facility for a 72 hour hold. In an October 2021 statement, the Veteran disagreed with prior characterizations in the record, clarifying that her depression began after her hysterectomy, rather than during service or prior to her hysterectomy, and therefore her service treatment records are silent as to any mental health treatment; and that the condition is not related to other life events, such as the end of a relationship, financial difficulties, or military or childhood trauma. She also clarified that her symptoms did not begin in the last 3 to 4 years of military service (which the Board notes is contrary to her Board testimony), as her sister is the only one who noticed the change in her mental health after service; and that she began looking for mental health treatment in 2013, not 2015. A March 2015 statement from her sister notes that she observed a change in the Veteran's disposition within a few months following her 1988 hysterectomy in that the Veteran became more irritable, short-tempered and rude at times, whereas before the surgery she was more even-keeled; and she attributed these symptoms to the hysterectomy. The record shows that the Veteran is diagnosed with major depressive disorder, as shown in a September 2021 VA opinion. The examiner stated that, while medical treatment records also show diagnoses of unspecified depressive disorder and bipolar disorder, these diagnoses are mutually exclusive, meaning only one of these disorders can be diagnosed in the same individual and that, based upon the evidence in the claims file, symptoms of major depressive disorder are clearly documented, meaning a less specific diagnosis of unspecified depressive disorder is ruled out. The examiner also stated that while some providers considered and diagnosed bipolar disorder, the Veteran's most recent medical providers continue to diagnose major depressive disorder; thus, the examiner concluded that recurrent major depressive disorder is the correct psychiatric diagnosis. As the Veteran is diagnosed with a current psychiatric disability, the question becomes whether the major depressive disorder is related to service or caused or aggravated by the service-connected hysterectomy. After reviewing the record, the Board finds that the preponderance of evidence is against the claim. Although the Veteran asserted that her depressive symptoms began shortly after her hysterectomy, these assertions are not consistent with the evidence in the record, which does not document any mental health complaints until decades after service. The Veteran's service treatment records do not document any complaints, treatment or diagnosis related to a psychiatric condition, and the Veteran stated on appeal that she did not seek mental health treatment during service. A February 1985 reenlistment examination report showed a normal psychiatric evaluation, and the Veteran denied frequent trouble sleeping, depression/excessive worry and nervous trouble of any sort in the accompanying report of medical history. A December 1986 Physical Evaluation Board record indicates that the Veteran was having difficulty performing her assigned duties due to chronic pelvic pain and was referred to the Central Physical Evaluation Board for determination of fitness for duty; she was subsequently discharged in March 1987 by reason of physical disability. The first medical evidence in the record documenting mental health symptoms is in 2014, which is decades after service. A March 2014 VA treatment record notes the Veteran reported she had not been herself since her hysterectomy; an October 2014 VA treatment record documents a positive screen for depression; and an April 2015 VA treatment record notes a diagnosis of recurrent major depression. Notably, the Veteran's private treatment records contemporaneous to her medical treatment for her hysterectomy in 1988 do not reflect any mental health-related complaints or findings. See June 1988, August 1988 and September 1988 private treatment records. The Board finds the contemporaneous medical evidence to be significantly more persuasive and credible than the Veteran's statements made to VA for purposes of seeking compensation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). As a psychiatric condition was not shown during service or within the year after discharge, competent evidence linking the psychiatric disorder to service or the service-connected hysterectomy is needed to substantiate the claim. On this question, the most probative evidence is against the claim. An October 2015 medical evaluation by a private treatment provider noted that the Veteran presented for an initial evaluation for psychiatric symptoms and evaluation recommended by her VA representative. The clinician noted that the Veteran reported that these symptoms were chronic low mood, insomnia and sleep problems, fatigue, low energy, isolation and fluctuating appetite. The clinician stated that the Veteran presents with chronic low mood and multiple neuro-vegetative symptoms since 1988 following her military training and hysterectomy. A July 2018 statement from a VA medical provider noted that the Veteran had been under her care since October 2017 for major depressive disorder symptoms, which the Veteran reported had developed after her hysterectomy in 1988. A May 2015 VA examiner provided a positive secondary service connection opinion. During the examination, the Veteran reported that she experienced depression, fatigue, irritability, chronic anger and sleep difficulties while she was in the military during her last 3 to 4 years of service. The VA examiner opined that the Veteran's depression was as likely as not proximately due to the service-connected hysterectomy and aggravated beyond natural progression by the hysterectomy. As to causation, the examiner reasoned that, shortly after the service-connected hysterectomy, the Veteran began to experience depression, fatigue, poor concentration, emotional instability, chronic anger and mild anxiety. As to aggravation, the examiner reasoned that the Veteran reported she experienced depression, fatigue, irritability, chronic anger and sleep difficulties during the last 3 to 4 years of her service. A June 2015 VA examiner provided a negative secondary service connection opinion. The examiner opined that the major depressive disorder was less likely than not due to the hysterectomy. The examiner reasoned that the current treatment records do not reflect that the Veteran is depressed due to the hysterectomy, but rather note financial problems, bankruptcy and family issues; and that the records do not substantiate a historical pattern of treatment to support a nexus for the current major depressive disorder as related to the hysterectomy. A September 2021 VA examiner provided negative direct and secondary service connection opinions. As to direct service connection, the examiner opined that the major depressive disorder is less likely than not related to service, reasoning that the Veteran's service treatment records are silent for depression or other mental symptoms or treatment; the Veteran did not endorse depressive symptoms on the January 1983 and February 1985 Report of Medical Examination forms; and her February 1985 in-service psychiatric evaluation was normal. Further, the Veteran was not diagnosed with a depressive disorder until 2015, approximately 28 years after discharge, and there is no objective medical evidence showing treatment for mental health symptoms or continuity of care prior to 2015. As to secondary service connection, the examiner opined that the depressive disorder was less likely than not proximately caused or aggravated by the service-connected hysterectomy. The examiner reasoned that there is no objective medical evidence in the claims file to support the Veteran's self-reported history of chronic depression 3 to 4 years prior to discharge and since 1988 following the hysterectomy or support the sister's statement that she observed a change in the Veteran's mood a few months following the hysterectomy. The examiner explained that the service treatment records do not document mental health complaints or treatment and the objective medical evidence does not document mental health treatment or evaluation until 2015; that the documentation in the Veteran's medical treatment records that she has had chronic depression since her hysterectomy in 1988 is based on the Veteran's self-reported history to her medical providers and not based on an evaluation report by a medical provider at that time; and there is no confirmed diagnosis of depression prior to 2015, which is more than 25 years after the hysterectomy. She further reasoned that, although the Veteran may subjectively feel as though she has had depression since 1988, in the absence of an evaluation by a mental health provider at the time, it is unknown whether she had clinically significant symptoms of depression prior to March 2015 when she was first diagnosed with depression; she noted that the Veteran self-reported some depression symptoms in November 2013 and October 2014, for example, but these symptoms were not clinically significant and did not meet diagnostic criteria for a diagnosis of depression. The examiner further explained that, even if the Veteran had some depressive symptoms in the 1980's, in the absence of a mental health evaluation at that time, it is unknown whether the depression symptoms were clinically significant and what the symptoms may have related to, as she reported multiple life stressors and problems that may have contributed to depression. The examiner noted that at the time of her depression diagnosis in 2015, the Veteran reported multiple current stressors, including relationship problems, family problems, sleep issues, her sister becoming severely ill and losing her sight, and the Veteran being unable to work due to physical health problems and financial strain. The examiner also explained that the Veteran has a family history of depression in her mother and sister, which places the Veteran at a 2 to 4 times higher risk for developing major depressive disorder. Finally, the examiner explained that the Veteran's major depressive disorder is currently moderate, which is an improvement compared to her 2015 level of severe, and medical records from the past two years document fluctuating depressive symptoms related to factors other than the service-connected hysterectomy. After reviewing the evidence, the Board finds the September 2021 opinion is the most probative and entitled to the greatest weight. The examiner extensively reviewed the claims file and noted specific medical treatment records; considered the Veteran's statements and reported medical history; and supported the opinion with a reasoned and articulated rationale that is consistent with the evidence in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The examiner also offered an alternative etiology and risk factor for the depressive disorder, namely, family history, and cited scientific research in support. Thus, the opinion is the most probative and persuasive. Conversely, the Board affords little or no probative weight to the other opinions in the record. To the extent the October 2015 private medical evaluation and July 2018 VA clinician's statement are meant to establish a positive nexus between the depressive symptoms and hysterectomy, the Board affords little, if any, probative value to this evidence, as the statements are based on the Veteran's self-reported medical history without notation to any objective medical evidence documenting such history; they also do not provide any rationale or explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of lay history unenhanced by any additional medical comment by the examiner is not competent medical evidence). As to the May 2015 VA opinion, the Board affords no probative value to this opinion, as it is conclusory and contrary to the medical evidence in the record, which does not show any psychiatric complaints or treatment until decades after service. See Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "[a]n opinion based on an inaccurate factual premise has no probative value"). As to the June 2015 VA opinion, the Board affords this opinion minimal probative value as it is based on an inadequate rationale, does not provide any explanation for the conclusion reached, and does not address whether the hysterectomy aggravated the psychiatric disorder. See also Stefl, 21 Vet. App. at 124 (2007). Although the Veteran claims to have suffered from depression since her hysterectomy, the Board does not find the assertions persuasive. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board finds the Veteran's denial of depression, excessive worry, and nervous trouble at the time of discharge from service and while undergoing treatment for her hysterectomy after service to be more credible and persuasive than statements made to the VA for purposes of compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighing credibility). The Board finds the objective evidence more probative than the lay statements. The Board acknowledges the statement from the Veteran's sister that she observed a change in the Veteran's mood after the hysterectomy. However, the Board finds the contemporaneous medical records to be more probative than recollections being made years later. See Buchanan, 451 F.3d at 1337. Moreover, to the extent the Veteran or her family members believe that her depressive disorder is related to service, or was caused or aggravated by her hysterectomy, as lay persons, the Veteran and/or her sister do not have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis and etiology of a psychiatric condition are matters not capable of lay observation and require medical expertise to determine. Thus, the lay statements are not competent medical evidence. The Board finds the opinion of the September 2021 VA examiner to be significantly more probative than the lay assertions. In sum, the most probative and persuasive evidence is against finding that the Veteran's acquired psychiatric disorder is related to service or caused or aggravated by the service-connected hysterectomy. Thus, the Veteran's claim for service connection for an acquired psychiatric disorder is denied. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.