Citation Nr: A21019271 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 190919-31758 DATE: December 3, 2021 ORDER Service connection for an acquired psychiatric disorder, to include depression and anxiety, is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with major depressive disorder and generalized anxiety disorder. 2. There was no in-service psychiatric injury, disease, or event and there was no onset of a psychiatric disorder during service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression and anxiety, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from August 1969 to March 1972. The instant matter is on appeal from a February 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for depression and anxiety. The issues of depression and anxiety have been recharacterized as an acquired psychiatric disorder, to encompass both sets of psychiatric symptoms, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board of Veterans' Appeals (Board) to be within the scope of the filed claim). The rating decision on appeal was issued in February 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Evidence Submission option. Accordingly, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his or her representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of service connection for an acquired psychiatric disorder, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Legal Criteria Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Service Connection for an Acquired Psychiatric Disorder, to Include Depression and Anxiety, is Denied. The Veteran seeks service connection for an acquired psychiatric disorder, to include depression and anxiety. The evidence shows that the Veteran has current diagnoses of major depressive disorder, generalized anxiety disorder, and alcohol abuse disorder. See, e.g., December 2019 VA Treatment Note. Accordingly, the present disability requirement is met. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of an in-service psychiatric injury, disease, or event. In the February 1972 Report of Medical Examination at separation, all systems were marked "normal," including psychiatric. During service, the Veteran was treated for complaints of pain in both knees and ankles that lasted several years and was intermittent, but was not treated for any psychiatric illnesses. The finding of a normal psychiatric system and the absence of diagnosis or treatment or symptoms during service, when such diagnosis, treatment, or symptoms normally would have been recorded had it occurred, are one factor supporting the conclusion that there was no in-service psychiatric injury, disease, or event. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). The Veteran has provided two statements that give his understanding of when the depression and anxiety symptoms started. In a September 2018 Affidavit, the Veteran stated that while he was in Advanced Infantry Training, he fell from an upper bunk onto a concrete floor, which caused him to lose consciousness. He stated that he was told later that he had been transported to a medical treatment facility somewhere on base, that the only thing he remembered was waking up in a bed in a clinic with a terrible headache, and that he was told to walk back to the barracks but that he could not remember where the barracks were located or how or where he had been injured. The Veteran asserted that he did not remember receiving medical treatment. The Veteran stated in the Affidavit that he believed this event led to the symptoms he was claiming, which included the claims for depression and anxiety. In a separate December 2019 Statement in Support of Claim, the Veteran provided an alternate explanation. The Veteran stated that during Advanced Infantry Training he was attacked by three soldiers while getting out of the shower area into the dressing room, that he did not know their intentions but thought they might be sexual, that he fought them off as best as he could, and that during the incident he fell and hit his head on the concrete floor and lost consciousness. The Veteran stated that he did not recognize the soldiers and that some of the people from his barracks found him and took him back to his bunk, which was an upper bunk. After that description of the personal assault, the December 2019 Statement in Support of Claim continues consistently with the September 2018 Affidavit (e.g., he fell from the top bunk and lost consciousness and all that developed from there). The Board finds that the explanation given by the Veteran is not credible, as the explanation of a personal assault is now being given for the first time in 2019 fifty years after it would have happened. The Veteran would have had the incentive to provide this explanation at any of the previous times he sought treatment, including when he sought treatment for alcohol abuse in the 1980s. Additionally, he would have had the incentive to provide this explanation in the Affidavit in September 2018. It is not credible that such a significant event would not have been mentioned at the same time as the other events that reportedly happened within the same twenty-four hour period. Although the Veteran asserts that the assault and fall are when his depression and anxiety started, he is not competent under the facts of this case to diagnose a mental health disorder. See, e.g., 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"); Clemons, 23 Vet. App. at 4-5 (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The medical records provide evidence of an alcohol disorder, but not another psychiatric condition until significantly after service. The evidence from the 1986 inpatient detoxification records (still almost fifteen years after service separation) demonstrate that he was struggling then with alcohol and valium abuse and that the problems had existed for some time, but even during that admission the only diagnosis given was alcohol abusenot generalized anxiety disorder or depression. Alcohol abuse cannot be the primary basis for service connection, so the suggestion that his alcohol problems traced back to service is not adequate for a grant of service connection. See 38 U.S.C. § 105(a); 38 C.F.R. § 3.301. (Continued on the next page) In short, although the Veteran has a currently diagnosed acquired psychiatric disorder, namely generalized anxiety disorder and major depressive disorder, the weight of the evidence is against a finding of onset during service or an in-service psychiatric injury, disease, or event. Accordingly, service connection for an acquired psychiatric disorder must be denied. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.