Citation Nr: 21076316 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-18 959 DATE: December 23, 2021 ORDER Entitlement to service connection for acquired psychiatric disorder, to include major depressive disorder (MDD), is denied. FINDING OF FACT The preponderance of evidence shows acquired psychiatric disorder, to include MDD, was not incurred during active service, it is not caused by an event, injury or illness occurring in active service and associated psychosis did not manifest to a compensable degree within 1 year of separation from active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include MDD, have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to September 1969. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires: (1) the existence of a present disability; (2) 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Under 38 C.F.R. § 3.303(b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). Entitlement to service connection for acquired psychiatric disorder, to include MDD. The service treatment records (STRs) show in the February 1969 enlistment examination, the examiner found the Veteran to have a normal psychiatric state and the Veteran denied any past or current depression or excessive worry. Although in the August 1969 separate examination the examiner found the Veteran's psychiatric state to be normal, the Veteran reported past or current depression or excessive worry. The examiner commented the Veteran "worries a lot." In an August 1969 Mental Hygiene Consultation Service Report, although no psychiatric diagnosis was stated, the report noted the Veteran's difficulty with the English language. After further noting the Veteran seemed to try hard in training and his duties, the report recommended the Veteran be separated from service "due to unsuitability and ineptitude." The post-active-service record shows in December 1996, the Veteran presented to VA feeling depressed and reporting recent suicidal ideations and memory loss. He was assessed with major depressive episode and a history of substance abuse, R/O [Rule Out] associative disorder. An October 1998 VA social work note shows the Veteran reported a 10-year, 100-dollar-a-day addiction to cocaine and he is now seeking treatment. A day later showed a confirmed positive urine laboratory analysis for cocaine. January 1999 VA treatment notes show depression in the Veteran's medical history and his current medications included anti-depression medication. He reported a family history of "mental health problems" of his brother and sister. Further reports by the Veteran included depression in his Health History questionnaire and the use of cocaine "daily/weekends for 10 y[ears]." He added he had thoughts of suicide in October 1998, but went to VA for treatment. Although in June 1999 the Veteran reported to a VA psychiatric treatment provider he felt better and had no symptoms of being situationally depressed, the treatment provider observed the Veteran's depression appeared to be in full remission at that time. However, in August 1999, the Veteran presented to VA for admission, reporting depression over financial concerns, he had attempted suicide with an overdose, and he stopped his medications in the past 3 months. The treatment provider diagnosed depression. Between August 1999 and February 2002, the Veteran's presented to VA with reports of depression. In initial visits in August 1999 through June 2000, his symptoms were noted as not "overly depressed." An October 2005 community hospital preliminary report noted the Veteran's reports of currently being homeless, as his wife "kicked him out of the house," he had not gone to any of the shelters and during the past year he had "apparently been abusing substances, including alcohol and cocaine, although he minimizes this." Laboratory analysis of urine was positive for cocaine. The hospital discharged the Veteran approximately 2 weeks later with a diagnosis of alcohol and cocaine abuse, depressive disorder, NOS (not otherwise specified), and adjustment disorder with depression. Between October 2005 and September 2006, the Veteran was routinely treated with medications at VA, presenting with reports of some symptoms of depression and he received diagnoses and assessments of depression. Periodically, he reported to his VA treatment provider his mood is depressed but not suicidal or homicidal and he denied any alcohol abuse. In a February 2007 visit to VA, after reporting hearing voices and feeling depressed, the treating physician diagnosed depression, recurrent with psychosis, dysthymia, NOS, alcohol abuse, episodic in remission. Although in March 2007 the Veteran's VA depression screen was negative, 4 days later the Veteran was admitted to VA based on reports by family members of loud, hyper talkative behavior, singing and hallucinatory behavior. However, directly after admission he became quiet, cooperative, with no signs or symptoms of psychosis, stating he is here for depression, and he denied any alcohol abuse or illicit drug use. The Veteran further reported he could not remember events of the last 2 days, but believed he was drinking heavily, as well as using cocaine. A staff physician assessed the Veteran with major depression with psychotic features and detoxification for substance abuse (ethanol). The following day, a VA social work treatment provider noted that the Veteran did not now appear to be displaying manic/hypomanic symptoms and he did not report concerns about depression. The treatment provider concluded, "It is possible that, behaviors observed at BMC and prior to admission stem from cocaine related disorder." In May 2007, the Veteran presented to VA for an unscheduled visit, during which he reported his hospitalization in March 2007 due to drug relapse and depression. He further reported his current symptoms of fatigue and being "bored." The treatment provider noted these appeared to be depressive features and he further noted the Veteran's reports that day of no psychosis or suicidal ideation. The treatment provider diagnosed depressive disorder. Between June 2007 and March 2009, the Veteran was routinely treated with medications at VA, presenting with reports of some symptoms of depression. Accordingly, he received diagnoses and assessments of depression. Between June 2009 and November 2019, VA regularly followed the Veteran for depression. For example, in July 2010, he reported overall improvement, October 2010 visits show the Veteran's reports of periods of increased depression and anxiety, in which he loses track of everything and just wanders the streets, in January 2011, he reported decreased depression and anxiety, the treatment provider in March 2011 characterized the Veteran's depression as moderate, the Veteran reported in December 2011 medications are helping, by July 2012, the treatment provider characterized the Veteran's depression as mild, the Veteran reported in December 2012 depression had improved, and from September 2009 through February 2014 diagnoses were recurrent major depression with a history of psychotic features vs. bipolar II disorder, episodic alcohol abuse (at times denying recent use). In February 2018, the Veteran reported increased depression and command audio hallucinations, such as unwanted, self-directed thoughts of harming himself, as evidenced by the Veteran's report that "voices were telling me to hurt myself" and others. The treating psychiatrists stated in their diagnostic impression that the Veteran has a history of intermittent depression with audio hallucinations and a history of cocaine abuse. However, the Veteran also reported he has audio hallucinations even when in a good and stable mood. The psychiatrists continued the prior diagnosis of MDD with psychosis for the present, but left as provisional the diagnosis with "schizoaffective as r/o." The psychiatrists further noted the Veteran was doing well for months on low dose of 1 of his medications, the suffered decompensation in face of relapse with substance abuse, but for some reason, he had not improved much despite an increase of antipsychotic medication. The community hospital discharge summary from February 2018 shows the Veteran's reports of hearing voices and being fearful of killing himself or other people. He further reported depression and "a little" anxiety, but denied suicidal ideation and homicidal ideation. The treatment provider's impression stated the Veteran's "current symptoms appear multifactorial in the setting of cocaine use, and worsening depressive/psychotic symptoms in the setting of an untreated primary mood disorder." He noted the Veteran "began using cocaine in the setting of his worsening depression and command [audio hallucinations]. Additionally, he has stopped his medications. The treatment provider diagnosed "severe MDD, with psychotic features, r/o substance-induced mood disorder, delirium secondary cocaine intoxication resolved, severe cocaine use disorder, and r/o alcohol use disorder." At VA in March through May 2018, the Veteran reported symptoms again supporting diagnoses of recurrent major depression with a history of psychotic features vs. bipolar II disorder, episodic alcohol abuse (at times denying recent use). By December 2018, the Veteran had improved and was continuing to do well. The Veteran continued to be followed at VA through February 2020. As directed by the Board in its August 2019 Remand, the Veteran was afforded a February 2020 VA examination for mental disorders, in which the examiner diagnosed MDD, recurrent and unspecified, with associated substance dependence and anxiety. The examiner noted the Veteran's reports of pre-active-service behavior, such as excessive fighting as an adolescent, as well as selling drugs. He added he "was depressed as a kid," further reporting significant levels of significant levels of depression and anxiety over the course of his childhood, due to poverty and selling drugs. He showed examples of erratic behavior during active service, to include striking his sergeant who pushed the Veteran up a hill when he had a painful foot. Significantly, the Veteran denied that he thinks about basic and/or advanced training as a cause for his anxiety or depression. He further reported childhood and teenage drinking of alcohol and his first use of cocaine at age 14. He added, after discharge from the Army, whenever he obtained money, he would use cocaine. "It could be 3 times a week or it could be 3 times a day. But I like to use cocaine and I use it a lot." He further added he continues to struggle with cocaine dependence. The examiner noted that the Veteran's medical records also indicated the Veteran has a history of medication abuse. After identifying associated symptoms and extensive interviewing of the Veteran, the examiner found occupational and social impairment with reduced reliability and productivity. Although the examiner rendered a negative opinion for service connection, based on the Veteran's reports, as explained in its July 2020 Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) found this opinion is not supported by the record, as no psychiatric symptoms were identified in the Veteran's February 1969 enlistment examination. The Board notes, in general, when no pre-existing condition is noted on an entrance examination, veterans enjoy the presumption that they were "in sound condition when examined, accepted, and enrolled for service." 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b)(1). Consequently, the Board cannot base its decision on the February 2020 opinion. The record shows the AOJ made a request in March 2020 for a new VA examination and opinion for acquired psychiatric disorder. However, later in March 2020 that examination request was canceled, and the reason given was the Veteran's failure to report for the scheduled examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim and the claimant does not subsequently provide good cause for his or her failure to do so, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed or a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655. See also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). The Board has reviewed the record and has found no communication to the AOJ from the Veteran or his representative explaining his failure to report, nor does the record contain any indications of attempts by the Veteran or the representative to make contact with the AOJ. Based on these facts, the Board finds the Veteran has not provided good cause for his failure to report to the VA examination scheduled in March 2020. As directed by 38 C.F.R. § 3.655(b), the Board will proceed with its decision based on the record as it now stands. The Board will note here that the November 2021 Appellate Brief, submitted on the Veteran's behalf, asserts, that although the AOJ based its July 2020 denial on the Veteran's failure to report for the March 2020 examination, it "failed to include discussion of COVID 19 and [the Veteran's] health issues at that time which caused fear and isolation. Consequently, the Veteran challenges the reasons and basis for his denial and request[s] further development of his appeal through remand." The Board finds this argument not relevant. Once again, the record is devoid of indications that the Veteran or his representative attempted to provide the AOJ with any explanation amounting to good cause for simply not showing up for the examination, as required by regulation. Furthermore, the Brief does not contend the Veteran did not receive notice of the examination, and there is no evidence that notice was returned as undeliverable. Turning again to the record, as set forth the Board's summary above, the Board further notes that psychosis, as associated with the Veteran's acquired psychiatric disorder, may be eligible for presumptive service connection as a "chronic disease" under 38 C.F.R. § 3.309(a). As shown above, VA treatment providers numerous times diagnosed psychosis or noted a history of psychosis and the February 2018 community hospital discharge diagnosis stated severe MDD, "with psychotic features." However, the STRs show no reports, treatment, or diagnoses of psychosis during active service and the record gives no indication of the manifestation of psychosis within a year of separation from active service. Looking to the possibility of continuity of symptomatology establishing a nexus between any in-service event, injury or illness and psychosis as a subsequent chronic disease, the Board notes that, putting aside the lack of medical evidence of any treatment for psychosis at that time, it is otherwise impossible to establish continuity of symptomatology by relating the Veteran's post-active-service psychosis to active-service events after the approximately 38 years since separation from active service before the earliest appearance in the record of psychosis, diagnosed in the Veteran's February 2007 visit to VA, in which the Veteran reported hearing voices. Consequently, the presumption of service connection for psychosis as a chronic disease, as associated with MDD, is not available to the Veteran. The Board has carefully considered the Veteran's July and November 2014 lay statements, his statement accompanying the November 2014 Notice of Disagreement, his April 2016 correspondence statement, and the June 2019 statement accompanying his Veterans Appeals Form 9, as well as the Veteran's reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and ordinarily there would be no reason to doubt his credibility. Nonetheless, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran's statements and reports essentially contend he experienced unfair, prejudiced, and persecutory treatment in active service. The Board readily understands the Veteran's reasoning that, because of this treatment, he developed a psychiatric disorder, to include MDD, now worsening since active service. The Veteran has drawn his own conclusions as to the cause of his MDD and, although the absence of in-service medical treatment records is not determinative, see Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007), even without clinical psychiatric findings to establish in what way events and activities during training and active-service duties caused MDD or any psychiatric disorder, the record shows no objections by the Veteran concerning his maltreatment during active service. Indeed, the Army psychiatrist who composed the August 1969 Mental Hygiene Consultation Service Report stated what undoubtedly was reported to him concerning the Veteran by training personnel, "He seemed to try hard." Although the Board accepts as possible the Veteran's characterizations of how he was treated during service, the Board finds the Veteran's conclusions are not credible as a basis of causation of the current acquired psychiatric disorder, to include MDD. The record of treatment overall offers no medical evidence showing a connection of the Veteran's acquired psychiatric disorder to active service. The STRs note the Veteran's difficulties with worrying, but do not show in-service treatment or diagnoses pertaining to a psychiatric disorder. The record reflects that the Veteran did not seek treatment for MDD or any psychiatric disorder upon separation from active service, nor in the several years following until, the Veteran was assessed at VA in December 1999 with major depressive episode. There remains no evidentiary basis on which to establish a causal connection or "nexus" between the Veteran's current acquired psychiatric disorder, to include MDD, and an event, injury, or illness in active service. For the foregoing reasons and based on the evidence of record, medical and lay, the Board finds the preponderance of the evidence is against the claim for service connection for acquired psychiatric disorder, to include MDD, on any basis. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not find an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Bonnie Yoon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.