Citation Nr: 21076546 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-03 953 DATE: December 27, 2021 ORDER Service connection for an acquired psychiatric disorder, to include depression and other specified trauma and stressor-related disorder, is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran's current psychiatric diagnoses, to include depression and other specified trauma and stressor-related disorder, were incurred in service. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1968 to July 1975. The procedural history of this claim is outlined in the June 2020 and June 2021 Board of Veterans' Appeals (Board) remands. In June 2021 the case was remanded for evidentiary development. All actions ordered by the remand have been accomplished. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person or person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric disorder Service treatment records (STRs) do not indicate any complaints, diagnoses, or treatments for a psychiatric condition in service. The Veteran's April 1968 preinduction report of medical history indicates he denied depression or excessive worry and nervous trouble of any sort. His clinical psychiatric evaluation was normal. In July 1973 the Veteran was assessed with possible globus hystericus or having a sensation of a lump in one's throat. The Veteran was referred for a circulatory consultation, and the examiner noted the Veteran demonstrated a negative examination. In August 1973 the Veteran reported wanting surgery to remove the lump due to having a psychological problem and a history of viral diseases. However, the surgical consulting examiner noted that no surgery was scheduled. At an August 1973 psychological consultation, the examiner reported the Veteran did not have a psychological problem but rather a biological one. On the May 1975 report of medical history at discharge, the Veteran denied depression or excessive worry and nervous trouble of any sort. His clinical psychiatric evaluation at separation was normal. There are no other complaints, diagnoses, or treatments for a mental condition in service. VA treatment records indicate periodic psychiatric screenings from 1999, 2009, 2010, 2011, 2013, and July 2014 indicate the Veteran did not endorse clinically significant depressive symptomatology. In other words, the Veteran's depression screenings were negative. In a July 2006 statement in support of a claim for posttraumatic stress disorder (PTSD), the Veteran reported traumatic experiences in Okinawa, Japan, in May 1972. He alleged that he then saw the Japanese police use "ruthless" tactics to maintain order as the United States gave Okinawa back to Japan. The Veteran also reported that during this time he learned that his sergeant died without explanation. The Board denied the Veteran's claim of service connection for PTSD in June 2020. In October 2014 the Veteran reported being resentful when thanked for his military service because the statement would bring back memories of the hostile reception he received upon returning home from his foreign assignment in Japan and when he had to explain that he was not a combat veteran. The examiner assessed the Veteran with rule/out major depressive disorder (MDD); rule/out PTSD; rule/out anxiety disorder not other specified (NOS). The Veteran screened positive for depression and PTSD. He also reported that he wrote a suicide note a few months previously that he carried with him. The examiner deferred making a diagnosis. In a December 2014 followup with a VA social worker, the Veteran reported he spoke to his wife and daughter about his suicide note and about his feelings of being a burden to them and of disappointing them, and that he had previous thoughts of suicide. The Veteran continued to endorse suppressing his feelings with his son. The examiner noted the Veteran was doing better; would benefit from a hobby or an activity; and that a followup in three months would be beneficial for him. The examiner diagnosed the Veteran with depression. In March 2015 the Veteran focused on the different ways that combat veterans were treated and that he felt frustrated when people asked him if he was a combat veteran. He also continued to endorse feeling like a burden to his family. The examiner noted the Veteran demonstrated decreased self-esteem and that his perceptions of what others think were distorted and causing him to react poorly in certain situations. The VA examiner diagnosed the Veteran with depression NOS. In October 2015 the Veteran requested "drop-in" privileges to see his VA examiner every six months. He also reported being angry about how he was treated upon returning home from service in Japan. In an April 2016 statement, the Veteran alleged he was spat on in the terminal as he reentered the United States. He recalled being anxious to remove his military uniform; that these memories depressed him; and that these memories continue to "haunt" him presently. He stated these incidents continued to occur and reinforced his worthlessness. At a May 2016 VA medical examination, the examiner noted the Veteran's psychiatric symptomatology did not meet the criteria for a current PTSD diagnosis but met the criteria for major depressive episode, recurrent unspecified. The examiner noted the Veteran's familial history with suicidal ideation and that the Veteran's first mental health appointment was 2014 with a suicide note he had written one to two years prior, with themes of failing his children and family with a focus on financial support. He reported that problems with depression started after he retired in 2010. The Veteran alleged three in-service stressors. The first stressor was the unknown circumstances of the Veteran's sergeant's death. The second stressor was a fight the Veteran engaged in at an airport terminal gate when he returned from Okinawa, Japan, with civilians and military police present. Stressor three was that he was yelled at and spat on when he walked through the airport terminal. The examiner opined the Veteran's MDD was less likely than not incurred in service because the Veteran reported symptoms of depression after his retirement in 2010, when he began to dwell on past events, to include his mother's death in 2012; feelings of regret of being an inadequate parent; memories of his loss of a supervisor; and overall feelings of worthlessness. The examiner noted the Veteran appeared to be struggling with integrity versus despair as he reviewed his life as unproductive, and with feelings of guilt. In September 2016 the Veteran reported increased anger outbursts at his grandson and that he had been having difficulties since he retired in 2010. The examiner noted the Veteran remained vague about any traumatic event that occurred during service. In May 2017 the Veteran reported his feelings of worthlessness were due to him not being a combat veteran. These triggers made him feel worthless. In September 2017 the Veteran's then-spouse filed for divorce. In a March 2020 psychological evaluation, a private physician Dr. A. Watkins, a licensed psychologist, interviewed the Veteran and reviewed his claims folder. She noted the Veteran met the criteria for Other Specified Trauma and Stressor-Related Disorder and MDD, and that the Veteran's trauma symptomatology was "considered to be the result from stressful military experiences." This opinion is conclusory and does not provide sufficient analysis to weigh the examiner's opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The physician did not provide a factually based explanation for her conclusion linking the Veteran's symptomatology to his service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). For example, the examiner does not address the fact that the Veteran separated from service without a diagnosed psychiatric condition, nor reported any complaints nor sought any treatment for a mental disorder until 2014, almost 35 years after service. Also, the examiner did not address that the Veteran's suicide note was to his family for his feelings of regret and being a burden to them and did not refer to any military triggers. Finally, the examiner did not address the fact that the Veteran reported the onset of depressive symptoms in 2010 to VA examiners at his earliest mental health sessions. At a July 2020 VA medical examination, the examiner opined the Veteran's claimed condition was less likely than not incurred in service because the Veteran's STRs did not indicate treatment for a mental health condition; the Veteran's suicide note referred to failing his children and family and did not mention any military triggers or service; and that the content of the note indicated the Veteran's depression and related suicidal ideation was a result of circumstances occurring many years after his military service. In an August 2020 addendum opinion, the examiner addressed the Veteran's alleged stressors of being treated poorly by onlookers as he walked through an airport from Okinawa, Japan, and the stressor of learning his supervisor dying in Japan without any further details. The examiner noted that even with these stressors his opinion did not change and that the Veteran's current MDD was not incurred in service. In a September 2020 addendum opinion, the same examiner elaborated that the Veteran's VA medical examination indicated the Veteran was diagnosed with unspecified Depressive Disorder. The examiner noted prior VA medical examinations showed the Veteran did not have PTSD but rather unspecified depression. The examiner noted that notations in counseling sessions of "depression" and "anxiety" were not diagnoses but rather problems treated during the session, and thus noted that the Veteran's unspecified depressive disorder diagnosis had been consistent since 2015. Furthermore, the examiner noted the Veteran's suicide note referred to his feelings of being a burden to his family and did not refer to feelings about his service or being underserving because he was not a combat veteran. In a September 2021 addendum, the VA examiner reviewed the notes of the Veteran's March 2020 evaluation by Dr. Watkins. The examiner noted that although Dr. Watkins noted the Veteran's diagnoses were considered a result of his service, the examiner noted that her notes did not reference any stressor that would support such a trauma-related diagnosis. The examiner opined that the Veteran's current diagnosis was not incurred in service based on the review of the Veteran's claims file, chronology of symptom onset and progression, treatment history, and consistency of reporting symptomatology and the diagnostic criteria. The claim for service connection is denied. There is no probative medical evidence that indicates the Veteran's current psychiatric diagnoses were incurred in service. The Veteran has continuously asserted throughout the appeal that his current psychiatric symptomatology is a result of military-related stressors. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current mental disorder. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Psychiatric disorders require specialized training for determinations as to diagnosis and causation and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current psychiatric diagnoses and their relationship to his service. The claim for service connection is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.