Citation Nr: 21075623 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-53 193 DATE: December 21, 2021 ORDER Service connection for an acquired psychiatric disorder, including depression, is denied. Service connection for substance abuse is denied. REMANDED Service connection for rheumatoid arthritis is remanded. Service connection for lupus, including as due to rheumatoid arthritis, is remanded. FINDINGS OF FACT 1. The current psychiatric disability, which has been diagnosed as depression, was manifested years after service separation and is not causally or etiologically related to service. 2. Service connection for substance abuse on a direct basis is precluded by law. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include depression, are not met. 38 U.S.C. §§ 1110, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303. 2. The criteria for service connection for substance abuse are not met. 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(m), 3.301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 2000 to September 2003. This matter is on appeal from a May 2016 rating decision. On the October 2016 VA Form 9, the Veteran requested a videoconference Board hearing; however, because the Veteran did not appear for the scheduled November 2021 Board hearing and did not request its postponement, the Board hearing request is considered withdrawn. In this case, the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements were satisfied by way of the April 2016 notice letter. The VCAA duty to assist has been met in this case. The complete service treatment records are associated with the record. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to decide on the appeals adjudicated herein. Although no VA examination or medical opinion was obtained, none was needed in this case when the weight of the evidence showed no in-service psychiatric injury or disease and service connection for substance abuse on a direct basis is precluded by law. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). During the appeal, the attorney's name changed from Nicole J. Heffel to Nicole J. D'Ambrogi, as reflected on the first page of this decision. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnoses of depression and substance abuse are not listed as chronic diseases under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable to the diagnoses. Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for depression is denied. The Veteran contends that the current psychiatric disability, which has been diagnosed as depression, is causally related to service. The Veteran reports that depression symptoms began during service and continued thereafter. After review of all the lay and medical evidence, the Board finds that the Veteran experienced depression and was prescribed anti-depressant medication during service, but the current depression is not related to the symptoms experienced during service. When the Veteran reported sadness and decreased sleep, among other symptoms, at a July 2002 follow-up appointment for treatment of a burn on the left leg, the service medical provider assessed depression and prescribed an anti-depressant medication (Celexa). A September 2002 service health record shows that anti-depressant medication was included among the Veteran's then-current outpatient medications with the prescription last filled in August 2002 and showing no refills. The weight of the evidence is against finding that the current depression is causally or etiologically related to service. After the 2002 assessment and treatment for depression (as discussed above), there is no complaint, finding, diagnosis, or treatment for depression during the remainder of service. At the July 2003 service separation examination, the psychiatric system was clinically normal. On the July 2003 service separation report of medical history, the Veteran checked "No" when asked if she then had nervous trouble of any sort (anxiety or panic attacks), frequent trouble sleeping, and depression or excessive worry. She also denied having received counseling of any type or being evaluated or treated for a mental condition. The evidence shows that post-service psychiatric problems began in 2006, approximately three years after service. See March 2016 VA psychiatry initial evaluation report (wherein the Veteran reported mood issues since 2006). Considered together with the absence of psychiatric problems during the last year of service, the gap of approximately three years between service separation and the onset of post-service psychiatric symptoms is one additional factor that tends to weigh against a finding of service incurrence. Although the Veteran has asserted that depression symptoms began during service and continued thereafter, the account is inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no psychiatric symptoms, findings, diagnosis, or treatment during service except for a one-time treatment for depression in 2002, a clinically normal psychiatric system in July 2003, and the Veteran's own denials of any such psychiatric symptoms in July 2003, as well as the Veteran's post-service March 2016 report at a VA initial psychiatric evaluation that depression (i.e., mood issues) had its onset in 2006 i.e., three years after service separation. Statements made for treatment purposes are deemed particularly trustworthy because an individual has incentive to report accurately the history of symptoms and impairment to receive proper care. In light of this evidence, the Board finds that the account of depression during and since service is not credible, so it is of no probative value. There is no competent opinion of record that links the current depression to service. The Veteran has asserted that a VA examination with a medical opinion is needed; however, because there is no probative evidence suggesting a link between depression and service, the Board finds that no medical opinion was needed on the question of whether depression was related to service in this case. Although the Veteran, as a lay person, is competent to report any psychiatric symptoms she has experienced at any given time, as well as a contemporaneous diagnosis by a medical provider, she is not competent to diagnose a psychiatric disability or render a competent medical opinion on the questions of causation because answers to such questions require medical expertise in the area of psychiatric disorders and falls outside the realm of common knowledge of a lay person. See generally Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence...is competent and sufficient to identify"). The DSM-5 cautions that it was "not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis." Rather, clinical training is required "to recognize when the combination of predisposing, precipitating, perpetuating, and protective factors has resulted in a psychopathological condition in which physical signs and symptoms exceed normal ranges." The "purpose of DSM-5 is to assist trained clinicians in the diagnosis" of various mental disorders. The weight of the evidence shows that symptoms of the current psychiatric disability were not manifested until years after service separation and are not related to service. Consequently, the Veteran's attribution of the current psychiatric disorder to service is of no probative value. In consideration thereof, the Board finds that the preponderance of the evidence is against the appeal, and service connection for an acquired psychiatric disorder, to include depression, must be denied. 2. Service connection for substance abuse is denied. Although the Veteran has indicated that the current substance abuse began during service and continued thereafter, direct service connection for substance abuse is precluded by law; therefore, there is no legal basis for service connection for substance abuse. 38 C.F.R. § 3.301. REASONS FOR REMAND 3. Service connection for rheumatoid arthritis is remanded. The issue of service connection for rheumatoid arthritis is remanded to obtain any VA or private treatment records pertaining to the 2003 wrist fusion, as reported by the Veteran at the June 2019 rheumatology clinic follow-up appointment. Wrist fusion is a procedure that may be used for treatment of arthritis. See https://orthoinfo.aaos.org/en/diseases--conditions/arthritis-of-the-wrist/. The Veteran has asserted that rheumatoid arthritis symptoms were first manifested in the wrist in 2003. While service treatment records show no relevant joint injury or disease and no symptoms of rheumatoid arthritis, it is currently unclear from the record whether rheumatoid arthritis was manifested to a compensable degree during the first post-service year; therefore, further evidentiary development, as outlined above, is needed. 4. Service connection for lupus, claimed as due to rheumatoid arthritis, is remanded. The outcome of the service connection appeal for rheumatoid arthritis potentially impacts the issue of service connection for lupus, to include as due to rheumatoid arthritis; therefore, final adjudication of the service connection appeal for lupus will be deferred until the AOJ completes the ordered development. The issues of service connection for rheumatoid arthritis and lupus are REMANDED for the following actions: Request any VA and/or private treatment records pertaining to the 2003 wrist fusion, as reported by the Veteran at the June 2019 VA rheumatology clinic follow-up appointment. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.