Citation Nr: 21076702 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-04 377 DATE: December 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, characterized as depression, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder as a result of his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to October 1973 with subsequent service in the National Guard. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in March 2019. A transcript of that hearing is of record. Most recently, the Board remanded this appeal in June 2021 to the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) for additional development. As the actions specified in the most recent remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a psychiatric disorder The Veteran claims that his acquired psychiatric disorder is due to his military service generally, and due to exposure to toxic chemicals while in the military specifically. The Veteran's contentions regarding his general military service revolve around not being deployed for combat operations to the Republic of Vietnam (RVN). See March 2019 Board Hearing Transcript. In an October 2005 VA Form 21-4138 Statement in Support of Claim, the Veteran alleged that he has "survivors' guilt" due to being stationed in Japan instead of being sent into combat. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability 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 a current diagnosis of persistent depressive disorder (PDD), the preponderance of the evidence weighs against finding that the Veteran's PDD began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with depressive disorder until December 2001, decades after his separation from service. The Board notes that the Veteran's service treatment records (STRs) do not reflect any complaints, findings, treatment, or diagnosis of psychiatric disease or injury. The September 1973 discharge examination noted a normal psychological evaluation. There are no records of psychiatric complaints or diagnosis during the post-service presumptive year of his active service. Also, the Veteran's May 1978 National Guard physical examination noted a normal psychological evaluation. The Veteran's May 1981, September 1983, April 1984, May 1985, August 1985, August 1987, August 1988, October 1991, and August 1996 National Guard reports of Medical History noted no depression or excessive worry, no frequent trouble sleeping, or nervous trouble of any sort. The Veteran first sought treatment from the VA in December 2001. He reported being depressed the previous several months due to a divorce, a friend dying, and difficulties at work. He reported treatment for depression in the 1990s when his parents died. He had supportive therapy, which helped. He was recently prescribed Paxil by a private physician for his depression. He was diagnosed with MDD, recurrent, bereavement. In July 2002, the Veteran had a VA psychology appointment and reported that he was depressed due to his ongoing divorce. In February 2003, the Veteran was diagnosed with major depression. He reported that he was going through a divorce. During April 2003 and May 2003 VA psychology appointments, the Veteran noted that he continued to be depressed due to his ongoing divorce. He was instructed on coping strategies with his divorce and strategies for his children to cope with the ongoing divorce. A private treatment note from April 2003 indicated that the Veteran complained of severe right shoulder pain and depression. In August 2004, the Veteran's treating VA physician opined that the Veteran's guilt, a symptom of major depressive disorder (MDD), is related to his active duty service. The physician noted that the Veteran did not serve in combat; however, his unspecified active duty experiences caused MDD. The physician did not specifically note any active service experience responsible for the Veteran's MDD diagnosis, and this opinion is inadequate in that regard. In February 2005, a VA psychiatrist opined that there was a greater likelihood than not the multiple psychosocial stressors over the years, including interpersonal conflicts, poor marriage, work stress, medical problems, and general life stressors were much more likely to be the cause of the Veteran's depression versus the survivor guilt secondary to non-combat status. The examiner noted that there was no evidence that the Veteran was experienced depression during active service. Review of the treatment records showed that the Veteran was treated for depression in the 1990s when his parents died and that he continued to be treated for depressive symptomatology since. In February 2013 a private physician diagnosed the Veteran with MDD and generalized anxiety disorder secondary to relationship difficulties. During the interview, the Veteran stated that he was ashamed of not participating in combat in RVN and had been suffering from a number of psychopathological symptoms since his discharge in 1973. He began "telling lies" and "telling people he had been in combat." The physician noted that "as a result of telling lies, he became angry towards himself to the point that he started to experience significant symptoms of depression and anxiety. However, as noted there is no credible and probative evidence of a psychiatric disorder in service or in close proximity thereto and the examiner does not appear to have had access to the Veteran's entire psychiatric treatment history, much of which attributes the Veteran's depression to other post-service factors. In February 2019, Dr. M.D. noted that the Veteran continued to have tremors, although he had not been diagnosed with Parkinson's disease. The physician opined that the Veteran's in-service trichlorethylene (TCE) exposure had contributed to tremor symptoms. The physician did not opine on, or note, the Veteran's depression. During his March 2019 Board hearing, the Veteran stated that was diagnosed with depression. He noted that he first experienced depression around 1984. He stated that he did not have psychiatric symptoms prior to 1984. The Veteran asserted that chemical exposure during active service was responsible for his depression. He stated that a VA physician believed exposure to TCE was responsible for his depression. In December 2019, the Veteran underwent a VA examination for mental disorders. He was diagnosed with PDD. He reported being depressed daily and miserable a few times a week. He had difficulty having the appropriate emotion for the moment. His depression was worse during the holidays and around the anniversary of his son's death. He had heart surgery in 2019 and found that his appetite was greatly diminished, so he lost weight. He continued to have interest in activities and was hopeful for the future. The examiner noted that a mental condition had been diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The Veteran noted that his son died in 2006 in a car accident. He had a year of bereavement. The Veteran reported onset of depression in 1984. He went to the VA and was prescribed medication. After that instance, he did not seek treatment for depression until the late 1990s. The VA examiner opined that the Veteran's PDD is not at least as likely as not related to his active service. The rationale was that there were multiple cumulative factors that resulted in the Veteran's depression. The examiner noted that it was not possible to link the Veteran's depression to his active military service, notably TCE exposure, without resorting to mere speculation as there is a deficiency in the record (additional facts required) demonstrating the onset of the Veteran's depression during service. The Board found that this opinion was inadequate in its November 2020 decision as the examiner did not address the Veteran's contention of survivor's guilt causing his depression. During a February 2020 VA psychiatry appointment, the Veteran reported depression for many years. He stated that he was first treated for depression in 1984; however, medications, such as antidepressants, had not been helpful. He also noted guilt for not deploying to RVN. He reported prolonged and extensive exposure to chemical agents which he believed caused tremors and contributed to his depressed mood. Upon examination, he was oriented in all spheres, speech was normal, though was goal-directed, Mood was "okay," anxiety was denied, worry was denied, judgement was fair, paranoia was denied, and he denied suicidal and homicidal ideation. He was prescribed new psychiatric medication to treat his depression. In December 2020, a VA examiner opined that claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, based on review of the record, there were no instances of the Veteran engaging in unseemly behavior to avoid service in RVN and that he now felt guilty or that he was scheduled to serve in RVN, but dropped for a medical reason. The examiner found no instances of the Veteran doing something in which his depression was linked to not serving in RVN. The examiner opined that the Veteran's depression seemed to be in part related to what appeared to be a significantly delayed level of emotional maturity which some practitioners refer to as a personality disorder, which seemed to have caused constant interpersonal problems, other frustrations, and a constant sense of inadequacy. The examiner noted that the Veteran had in the past lied about his service, stating that he was in combat and repeated stories he had heard others say who had been in combat. It seemed that this was probably the core issue that he has what might be referred to as a personality disorder and depression because of that. The examiner found that the Veteran's depression was due to the constant problems he has had over his adult life, and not appreciably because of survivor's guilt. In an April 2021 statement, the Veteran's representative contended that the Veteran's MDD is directly related to his experience during active service "from not serving in combat, or in RVN." In August 2021, a VA examiner opined that it was less likely than not that the Veteran's psychiatric disorder had its onset in service or is otherwise etiologically related to active service, including the fact that the Veteran was not deployed to the Republic of Vietnam during the Vietnam era. The examiner explained that there were incompatible opinions regarding the Veteran's depression and his service. VA examiners had opined that it was more likely than not that the Veteran's depression was related to life stressors or lifelong challenges unrelated to service. Yet, at the same time, a VA psychologist, Dr. D., stated that it appeared likely that the Veteran's "guilt, a symptom of MDD, is related to his experiences in the service." While noting that guilt is a symptom of MDD, Dr. D. did not explicitly state that it was MDD that was related to service, but rather the Veteran has guilt that was related to service. A subsequent VA examiner opined that the Veteran's depression was less likely than not related to service. This examiner explained that the Veteran's guilt was related to his lack of combat and lying about his service record. The VA examiner stated that new information indicates that the Veteran's depressive symptoms are related to the Veteran becoming "increasingly ashamed of not participating in combat. He began to compensate for his shame by telling people he had been in combat, as a result of telling lies, he became angry towards himself to the point that he started to experience significant symptoms of depression and anxiety." This slight distinction is important, in that it is stating not that the Veteran's military experience caused his symptoms, but rather his life choices and embarrassment caused his symptoms. Therefore, the Veteran's depressive symptoms are related to his lying about his life experience, but not about his actual experience in the military. The Veteran's lies occurred post-military and his guilt is related to his feeling ashamed about his distorted military record. The Veteran's symptoms are not related to service, but rather his behavior choices post-service. This finding is supported by the record in that the Veteran had multiple psychosocial stressors after service, such as interpersonal conflicts, poor marriage, work stress, medical problems, and general stressors, which are more likely to be the cause of his depression. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his depression is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2021 examiner. The most probative evidence establishes that the Veteran's psychiatric condition is not related to active service. Service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.