Citation Nr: 21074018 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-63 083 DATE: December 14, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The evidence of record does not support a finding that an acquired psychiatric disability was manifest during service, was aggravated by service, is aggravated by a service-connected disability, and/or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1988 to April 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction of this appeal is currently with the RO in Winston-Salem, North Carolina. This case was previously before the Board in December 2018, January 2020, April 2020, and August 2021, at which times it was remanded for additional development. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38U.S.C. §§1110,1131; 38C.F.R. §3.303(a). 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 injury or disease. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown,6 Vet. App. 465, 469 (1994); see also38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107;38 C.F.R. § 3.102. See also Gilbert v. Derwinski,1 Vet. App. 49 (1990). Analysis The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, as the condition had its onset during his active-duty service, or was caused or aggravated by an in-service event, injury, or illness. The record indicates that he has been diagnosed with multiple acquired psychiatric disorders during the period on appeal, including adjustment disorder, alcohol use disorder, and unspecified depressive disorder. The Veteran has also claimed behavioral difficulties before his entry into service. Specifically, the Veteran claims that he experienced depression and anxiety symptoms prior to his entry into the military, which continued during and after his active duty service. He further claims that he had problems with drug and alcohol use prior to his enlistment, which resulted in being forced to change schools and being fired from jobs. A review of the record shows that, prior to his enlistment, in an April 1988 personnel security questionnaire, the Veteran wrote that he worked at a nursing home from October 1987 to February 1988, and at a hospital in February 1988, before becoming unemployed. However, he noted that he had never lost a job as a result of use of drugs or alcoholic beverages. He also indicated that he changed high schools in June 1984, before returning to his original high school in September 1986. This is despite his stated residence remaining the same during that time period. However, the Veteran's May 1988 enlistment examination did not document any psychiatric abnormalities, and he did not report any history of depression or nervous trouble. Service personnel records show that the Veteran was separated from active duty service after two Article 15 proceedings on the basis of a pattern of misconduct. His records reflect that disciplinary action was take due to an incident involving theft of a musical key board from a higher-ranking service member, assault of a higher-ranking service member with a wooden board, and underage consumption of alcohol in February and March 1989. His commanding officer stated that his neglect for authority had been proven by his total disregard for orders. The Veteran's April 1989 separation examination is negative for psychiatric abnormalities, but the Veteran did report a history of nervous trouble. The examiner noted his report of nervousness but indicated that it was related to job stress. He claimed in an April 1989 statement that he had a desire to continue his military service and requested "a second chance." He stated that he believed he got in trouble due to his young age and the stress related to the fact that he had never been away from home before. Notably, on mental status evaluation in April 1989, the examiner indicated that his behavior and thought content were normal, and that he had an unremarkable mood or affect. The examiner concluded that he was mentally responsible and had the mental capacity to understand and participate in the Article 15 proceedings. Post-service records are negative for psychiatric complaints until August 2015 when the Veteran submitted an initial claim for service connection for an acquired psychiatric disorder. In connection with this claim, he was afforded a VA psychiatric examination in December 2015. Significantly, the examiner diagnosed adjustment disorder with mixed anxiety and depressed mood. At that time, the Veteran reported that he had difficulty with a depressed mood and anxiety since his childhood. He stated that the only time he did not feel depressed or anxious was while playing football in high school. He claimed that the nervous trouble he reported at his separation examination was due to being discharged from service. He indicated that his depressed mood and anxiety were now prompted by coping with unemployment and being unable to his family due to significant financial stress. He noted that he experienced symptoms daily. He stated that he had difficulty falling asleep because he thought about his current problems. The Veteran stated that prior to his enlistment, he worked as a pizza delivery driver and at a nursing home. He indicated that he had significant work-related problems and noted that he was fired from his position at the nursing home due to drug and alcohol abuse. He reported that after separation from the military, he took some college courses, but eventually dropped out due to alcohol and drug use. He claimed that he had difficulty maintaining employment after leaving the military and reported arguments and verbal altercations with co-workers and supervisors. He noted that he had been fired from multiple jobs both before and after his military service due to missing too many days or not showing up because of his alcohol and drug abuse. He indicated that his legal history made it difficult for him to find work. The examiner opined that the Veteran's adjustment disorder was less likely than not incurred in or caused by an in-service event, injury, or illness. The examiner stated that he reported significant pre-military psychosocial difficulties, such as substance abuse, physical altercations, selling drugs, multiple suspensions from school, being removed from one school, behavioral issues, and counseling in childhood. He further indicated that his behavioral difficulties continued while he served in the military and claimed that he brought his "street mentality" into the military. He noted that this led to a pattern of misconduct which ultimately led to his discharge. The examiner stated that his service treatment records did not note a diagnosis of or treatment for a mental disorder during his military service but did mention the report of nervous trouble on his separation examination. The examiner concluded that his discharge from service was a life transition that would normatively cause stress. In his July 2016 Notice of Disagreement (NOD), the Veteran indicated that he experienced continuous symptoms of his diagnosed adjustment disorder with mixed anxiety and depressed mood after his separation from active-duty service. He stated that he was unable to obtain treatment for the condition due to inadequate medical coverage. In a July 2016 private psychiatric assessment, the Veteran reported symptoms of depression, anxiety, "adjustment disorder," and anger due to stressors including his finances, lack of transportation, the death of his parents, and his relationship with his family and kids. He noted experiencing periodic nightmares in which he was being chased and/or someone was trying to hurt him. He indicated that he wished he could change his attitude and behavior during his time in the military, so that he could have made it his career. In its December 2018 remand, the Board found that the evidence suggested that the Veteran may have had a pre-existing psychiatric disorder prior to service and, thus, remanded the case to obtain a medical opinion as to whether the Veteran had an acquired psychiatric disorder that was both preexisting and not aggravated by his service. Pursuant to the December 2018 and January 2020 Board remands, the Veteran was afforded another VA psychiatric examination in January 2020. Significantly, the January 2020 VA examiner diagnosed both alcohol use disorder, moderate as well as unspecified depressive disorder. At that time, the Veteran reported that he experienced depressive symptoms, and stated that his psychosocial stressors were the source of his depression. He noted that he felt like he was letting his wife down because he was not taking care of his children to the best of his abilities, and further noted that he lost his wife and mother, which was difficult to process. The examiner diagnosed him with unspecified depressive disorder and alcohol use disorder, with overlapping symptoms. The Veteran also reported that he had behavioral issues while growing up, and that he "fought cops, sold drugs, and was the king of New York." He stated that he utilized rehabilitation facilities on multiple occasions throughout the 1990s and 2000s. He indicated that his behavioral issues continued during his military service and noted that he was arrested "every weekend" and was disrespectful to authority figures on a frequent basis. He claimed that he was arrested on multiple occasions after his separation from the military for things such as fighting, disorderly conduct, and selling drugs. He stated that he utilized rehabilitation facilities for alcohol and drug use on multiple occasions in the 1990s and 2000s. He indicated that he used drugs and alcohol before, during, and after his active-duty service. Upon review of the claims file, the January 2020 VA examiner found that there was no objective evidence to support that the Veteran's acquired psychiatric disorder clearly and unmistakably pre-existed his entry into service. The examiner further indicated that the Veteran's medical records were silent for mental health diagnosis and treatment, and there was no objective evidence to suggest that he had a mental disorder prior to or during service. Significantly, the January 2020 VA examiner noted review of the December 2015 VA examiner's discussion regarding his report of significant pre-military psychosocial difficulties, which he claimed continued during service. The January 2020 VA examiner also indicated that the Veteran's symptoms did not meet the criteria for adjustment disorder at that time, as he did not have a clear and identifiable stressor linked to his depressive disorder or alcohol use disorder. The examiner concluded that the Veteran's depressive disorder and his alcohol use disorder were not related to his military service, because the medical records were silent for mental health treatment prior to and during service, and there was no objective evidence indicating a nexus between his military service and current mental disorders. In its April 2020 remand, the Board found that the January 2020 VA opinion did not adequately address the Veteran's contentions that his acquired psychiatric disorder had its onset during service. As such, the case was remanded again for an addendum medical opinion. Pursuant to the April 2020 Board remand, an addendum medical opinion was obtained in July 2020 in which the examiner generally reiterated the opinion provided by the January 2020 VA examiner. As such, an additional VA medical opinion was obtained in April 2021. Significantly, the April 2021 VA noted the Veteran's reported continuing difficulty with maintaining employment, as well as difficulty interacting with others. The examiner also noted that the Veteran previously had a CDL license but lost the license due to substance abuse and that the Veteran used alcohol heavily over the prior several years, consuming beer or liquor on a nightly basis. After documenting a review of the evidence of record, the April 2021 VA examiner opined that the Veteran's current mental health complaints were mainly due to his wife's death in 2016. The examiner noted that records showed previous mental health problems due to his finances, lack of transportation, the death of his parents, and his relationship with his family and children. In its August 2021 remand, the Board found the January 2020 and April 2021 VA opinions to be inadequate. Significantly, the Board found that the examiners' findings that that there was no objective evidence that the Veteran had an acquired psychiatric disorder before or during his active-duty service was unsupported by the record given the Veteran's significant behavioral difficulties before and during his service. As such, the case was remanded for an addendum medical opinion to address whether the Veteran's psychiatric disorder clearly and unmistakably pre-existed his entry into active duty service, and, if so, clearly and unmistakably was not aggravated by his service. Pursuant to the August 2021 Board remand, another VA medical opinion was obtained in August 2021. Significantly, the August 2021 VA examiner opined that the Veteran's acquired psychiatric disorders are less likely than not (less than 50 percent probability) incurred in or caused by any claimed in-service injury, event, or illness. The examiner found that the Veteran's alcohol use disorder and chronic adjustment disorder were less likely than not incurred in or caused by complaints of nervousness found in the Veteran's service treatment records during service. Significantly, it was noted that the records do not support that the Veteran experienced problems, to include substance abuse, on a near continuous basis after separation from service. Rather, a review of the records shows that the Veteran's current psychiatric disorders are at least as likely as not due to both of his parents dying in 2013 and the Veteran's wife dying in 2016. While the Veteran's service records show misconduct, an alcohol possession charge, assault charge, and intoxication on one occasion, service treatment records do not show any mental health diagnoses or treatment. Significantly, a May 1988 service treatment record shows "no alcohol abuse" and that the Veteran denied depression, anxiety, or nervous trouble. The Veteran's psychiatric determination at that time was normal. The Veteran's complaint of "nervous trouble of any sort" in an April 1989 report pf medical history was related to job stress, later determined to be stress from being discharged from service by the December 2015 VA examiner. The examiner not that, since the Veteran's discharge in 1989, the record was silent for any mental health complaints, diagnosis, or treatment until his August 2015 claim, after both of his parents died in 2013. The July 2016 private treatment record shows that the Veteran's symptoms are unrelated to his military service and/or substance use and are, instead, related to trouble with his finances, no transportation, and the death of parents in 2013. It was also noted that the Veteran stopped using alcohol from 2011 until 2016 when his wife died. The August 2021 VA examiner further opined that, even if the Veteran did have a psychiatric disorder prior to his military service, the Veteran's currently diagnosed alcohol use disorder and chronic adjustment disorder were not aggravated beyond their natural progression by an in-service injury, event, or illness. As rationale for this opinion, the examiner reiterated that there was no nexus between the Veteran's current mental health complaints and his military service. It was also noted that the records do not show that the Veteran had a substance abuse condition that qualified as a psychiatric disorder during service or any other psychiatric condition during service that was aggravated by his service. After considering the evidence, the Board concludes that service connection is not warranted for an acquired psychiatric disorder. The evidence shows the Veteran is currently diagnosed with alcohol use disorder and chronic adjustment disorder during periods relevant to the appeal. However, the preponderance of the evidence is against finding a nexus between any current acquired psychiatric disorder and the Veteran's service. The Board has considered the lay evidence of record. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a); Davidson v. Shinseki,581 F.3d 1313 (Fed. Cir. 2009). 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. See Jandreau v. Nicholson,492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran primarily asserts that his anxiety began due to multiple stressful events during service and that his alcohol use and nervousness has continued since he separated. He is competent to provide evidence of which he experiences, including his symptomatology and medical history. See Layno v. Brown,6 Vet. App. 465, 469 (1994). He is also competent to report alcohol use and nervousness, as such symptoms are lay observable. However, the Board finds the Veteran's lay statements attributing his alcohol use and nervousness to in-service events are less credible than the remaining record. Specifically, the service treatment records, post-service treatment records, and the Veteran's prior lay statements provide a far more credible basis for determining whether a current psychiatric disorder is related to his service. The Board finds the August 2021 VA opinion to be highly probative evidence as to whether a current acquired psychiatric disorder is related to service. The examiner rendered the opinion after reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history, including service treatment records, post-service treatment records, and the Veteran's lay statements, and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The examiner's rationale was based primarily on the treatment records and the Veteran's statements made while receiving psychiatric treatment. The opinion is consistent with the Veteran's documented medical history, which shows a normal psychiatric evaluation at separation, that he denied any history of psychiatric symptoms at separation, and that during post-service psychiatric treatment, he attributed his symptoms to post-service events. As such, the August 2021 VA opinion is probative evidence that a current acquired psychiatric disorder is less likely than not related to service or aggravated by the Veteran's service. (Continued on the next page) In sum, the most probative, credible evidence shows that a psychiatric disorder was not manifest during service, had its onset after service, is unrelated to service, and was not aggravated by his service. The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for an acquired psychiatric disorder is denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.