Citation Nr: 21075571 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-21 588 DATE: December 20, 2021 ORDER Entitlement to service connection for acquired psychiatric disorder, claimed as anxiety with depression, is denied. FINDING OF FACT The competent evidence does not demonstrate that the Veteran's currently diagnosed acquired psychiatric disorder is attributable to the Veteran's active service or any incident of service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1131, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during a Board hearing held in March 2019. The Veterans Law Judge (VLJ) who held the hearing is no longer at the Board. In a September 2021 VA letter, the Veteran was notified that the VLJ was no longer at the Board and provided the Veteran an opportunity to testify before another VLJ. The Veteran did not respond within 30 days of the VA letter. This matter has previously been before the Board in March 2020 and April 2021. It has now come back before the Board for final adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder, claimed as anxiety and depression, which developed due to service. The question for the Board is whether the Veteran has an acquired psychiatric disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed with an acquired psychiatric disorder, the preponderance of the evidence is against a finding that any such condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the available service treatment records (STRs) does not reflect that the Veteran was ever diagnosed with a psychiatric disorder or sought treatment for any symptomatology attributable to a psychiatric disorder during service. The Board does note that during his August 1984 separation examination, the Veteran stated that he suffers from depression or excessive worry. See August 1984 VA Report of Medical History. Post-service VA medical records show that the Veteran has been diagnosed with unspecified depressive disorder. See June 2021 VA Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ). The Veteran first sought post-service treatment for his acquired psychiatric disorder in 2007. Here, the examiner noted the Veteran has suffered from depressed mood and increased anxiety/irritability, likely secondary to significant social stressors, for the past year. See December 2007 VA OPMH Progress Note. It was noted that the Veteran's depression worsened due to multiple medical problems, chronic physical pain, and multiple psychosocial stressors. See March 2009 VA Mental Health Outpatient Note. The Veteran sought treatment against in 2010 and was diagnosed with depression and anxiety. See March 2010 VA Telemental Consult Follow-up Note. In June 2011, the VA treatment records stated that the Veteran had a history of failing to appear to appointments and only seeking treatment when there are social stressors. The physician noted that the Veteran had a diagnosis of depression. See June 2011 VA Psychiatry Progress Note. During a Social Security Administration (SSA) psychiatric evaluation, it was noted that the Veteran reported he had trouble controlling his anger since 1983. See May 2015 SSA Complete Psychiatric Evaluation. During the evaluation, the examiner noted that the Veteran did not have any difficulties controlling his anger impulses. See id. The Veteran again sought treatment in 2020 for his acquired psychiatric disorder. Here, the examiner noted a diagnosis of depression and PTSD. The Veteran reported nighttime hyperarousal, nightmares, trouble sleeping, restless leg syndrome, self-isolation, and poor concentration and appetite. See May 2020 VA Mental Health Consult, July 2020 VA Psychiatry Consult. In June 2021, the Veteran underwent his first VA examination. Here, the examiner found a diagnosis of unspecified depressive disorder. The examiner noted that the criteria for PTSD were not met. His symptoms were noted as depressed mood, disturbances of motivation and mood, and inability to establish and maintain effective relationships. The examiner did note that the Veteran's sleep was reported as impaired likely due to undiagnosed obstructive sleep apnea. See June 2021 VA Initial PTSD DBQ. In connected with the June 2021 VA examination, the examiner completed a VA medical opinion and an addendum. The Board notes the June 2021 VA medical opinion contains an error in which the June 2021 VA addendum clarifies. The Board notes the examiner mistakenly checked 3A and 3B on the medical opinion when choosing the statement that most closely approximates the etiology of the claimed condition. The Board finds the VA medical opinion is adequate as the June 2021 addendum provides for a clarification. See June 2021 VA Medical Opinion DBQ, June 2021 VA Addendum. The June 2021 examiner opined that the Veteran's diagnosed acquired psychiatric disorder was less likely than not incurred in or caused by his in-service injury, event, or illness. The examiner stated that while the Veteran reported nightmares about explosions, he also indicated that he never witnessed any explosions either during service or anytime thereafter. The examiner did not find that the Veteran endorsed symptoms of anxiety except for waking up sweaty and gasping for air. The examiner noted this was most likely due to undiagnosed obstructive sleep apnea, which he was recommended for a sleep study. The examiner acknowledged the report on the separation examination in August 1964 where the Veteran noted depression. The examiner continued to state that the Veteran had no records of any mental health issues or treatment during service and, while the service records reflect a complaint, the medical evidence supports the conclusion that a persistent disability was not present in service. Furthermore, the Veteran did not seek treatment for any mental health issues until 2007, nearly 23 years after discharge. The examiner notes that at the same time he sought treatment in 2007, he was diagnosed with some serious medical issues and had a difficult time coming to terms with the diagnoses. As noted above, the examiner also noted that the record similarly indicated that his depressive symptoms were due to his medical conditions. See June 2021 VA Medical Opinion DBQ, June 2021 VA Addendum. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for an acquired psychiatric disorder. There is no competent evidence that the Veteran was ever diagnosed with or received treatment for an acquired psychiatric disorder while in service, and the earliest available post-service records reflect that he sought treatment for mental health issues through VA in 2007, nearly 23 years after his discharge from service. While the Veteran is competent to report having experienced symptoms of an acquired psychiatric disorder since service, he is not competent to provide a diagnosis in this case or to determine that these symptoms were manifestations of a diagnosable psychiatric disorder. The determination of whether lay-observable mental health symptoms constitute a diagnosis, or the date of the onset of that diagnosis, is a complex medical question that is the province of trained and credentialed medical providers. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Furthermore, the June 2021 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not related to an in-service injury, event, or disease. He found that the Veteran had an unspecified depressive disorder that developed around the time he was first diagnosed with some major medical issues. This is also supported by the VA medical treatment records. It is also noted that there was a lack of any formal diagnosis of an acquired psychiatric disorder during service or for many years thereafter. The examiner's opinions are probative, because they are based on an accurate medical history, and they each provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, service connection is not warranted for an acquired psychiatric disorder. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.