Citation Nr: 21005709 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-25 039 DATE: February 2, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s acquired psychiatric disorder is not caused or aggravated by a service-connected disability, and is not otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.310, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in November 2018. The issue was originally before the Board in May 2019, where additional service connection claims for tinnitus and bilateral hearing loss were granted. His acquired psychiatric disorder claim was remanded for additional development and returned to the Board in September 2020. However, as the Veteran had then asserted the additional theory that his acquired psychiatric disorder was related to his newly-service-connected tinnitus, the matter was again remanded for a VA examiner’s addendum opinion. Review of the record reflects this development has been completed, and the matter now returns or further appellate review. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible evidence. The Veteran has a current acquired psychiatric disorder. For example, upon VA examination in February 2015 and September 2019 he was diagnosed with major depressive disorder. No other acquired psychiatric disorder, to include PTSD, was diagnosed pursuant to the criteria provided in any edition of the Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. § 4.125. Thus, the remaining question is whether the Veteran’s major depressive disorder is related to service or a service-connected disability. While the Veteran’s service treatment records (STRs) note an in-service head injury which the Veteran has asserted may be related to his current diagnosis, they are negative for any complaints, diagnosis, or treatment related to a mental disorder, including during separate examination in November 1974. The Board notes that the Veteran also indicated to the February 2015 VA examiner that he and several other Marines were involved in a fight with locals while stationed in Japan and was struck by a vehicle while running away from them. His STRs are absent an indication that he suffered injuries during any motor vehicle accident. An acquired psychiatric disorder is not shown by medical evidence until approximately the time of his initial service connection claim, decades after the Veteran’s separation from service. Prior to this date, his post-service medical treatment records are negative for psychiatric complaints, with the Veteran denying depression, anxiety, insomnia, suicidal/homicidal ideation, or a change in mood in an August 2009 private treatment record. In support of his initial service connection claim, a VA examination was afforded in February 2015, where the Veteran asserted that his psychiatric disorder was related to his in-service head injury. Major depressive disorder was diagnosed. The examiner, however, was unable to provide an etiological opinion regarding the Veteran’s current disability and any relationship to his in-service head injury without resorting to mere speculation. Thereafter, the Veteran’s claim was remanded by the Board in May 2019 for the RO to afford him an additional VA examination to determine whether any diagnosed acquired psychiatric disorder was directly related to his military service. The examination was afforded in September 2019. The examiner again found that the Veteran did not meet the diagnostic criteria for PTSD, diagnosing instead a depressive disorder. The examiner opined that the Veteran’s depressive disorder was less likely than not related to service, but rather, his declining physical health primarily related to nonservice-connected scleroderma, also noting that the Veteran’s treatment records since service are absent for a persistent mental condition until around 2013. As noted above, however, the Veteran was also awarded service connection for hearing loss and tinnitus by the Board in May 2019, which was effectuated by the RO in a September 2019 rating decision. In September 2020, the Veteran stated VA that he was informed by a physician that his acquired psychiatric disorder may be related to his newly service-connected tinnitus. As such, the Board again remanded the Veteran’s claim in September 2020 for an examiner’s opinion that addresses this new contention. The addendum was provided in November 2020. An additional negative opinion was provided, however, with the examiner explaining that there was insufficient information that the Veteran’s depression is proximately due to or the result of his tinnitus given that his previous mental health claims were not related to his tinnitus and this was not stated as a primary cause in any previous examination. Instead, the examiner again noted the determination of the September 2019 examiner who found the Veteran’s psychiatric symptoms were related to the declining physical health associated with his scleroderma. As to aggravation, the examiner found that there was insufficient information to presume that the Veteran’s depression has been aggravated beyond its natural progression by his tinnitus given the fact that, again, his primary complaints have consisted of other physical conditions. The Board acknowledges a May 2014 private opinion provided by Dr. E.H. Doctor E.H. diagnosed major depression but did not provide an opinion as to the etiology of that disorder. To the extent that Dr. E.H. was attempting to opine that the major depression was related to service, the opinion is afforded no probative weight as it contained no rationale for such a conclusion. Doctor E.H. also diagnosed PTSD and noted stressors occurring during service. One stressor Dr. E.H. noted the Veteran did not remember, and the other is inconsistent with the Veteran’s testimony. Specifically, Dr. E.H. indicated the Veteran witnessed two men killed in a fight. The Veteran testified that he witnessed a fight and was later told that someone died. While these may be the same event, there is a significant difference between witnessing a fight and being told after the fact that someone had died and witnessing the death of two people. This difference is significant enough that the diagnosis of PTSD is called into question as it appears based in part on an inaccurate factual premise. The treatment note upon which Dr. E.H.’s opinion is based includes what appears to be a new patient assessment by an individual who is identified by name only and is not identified as a psychiatrist or psychologist. The new patient assessment essentially provides a subjectively reported history. The portion of the note completed by Dr. E.H. essentially includes a diagnosis, a few subjective and objective notes, and a prescription for medication. There is no explanation as to the PTSD diagnostic criteria. In contrast, the VA examiners in February 2015 and September 2019 conducted full examinations and interviews with the Veteran and specifically addressed the PTSD diagnostic criteria. Both examiners found that a diagnosis of PTSD was not warranted. Given the above, the Board affords Dr. E.H.’s findings little probative weight. In contrast, the VA opinions, as a whole, are highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination and interview of the Veteran. The opinions are also clearly explained and supported by other evidence of record, including the absence of any documented mental health complaints until decades after service and the Veteran’s denial of common mental health symptoms in 2009. Overall, the Board finds the VA opinions more probative than Dr. E.H.’s opinion as to whether the Veteran has PTSD. Based on the foregoing, the Board finds the preponderance of the evidence is against the claim and service connection must be denied. The most probative evidence reflects that the Veteran does not have PTSD and his depression is not due to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. The Board has considered the Veteran’s statements, to include his assertions that his psychiatric disability is related to service or a service-connected disability. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., depression; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board also notes that the Veteran appears to have retracted the assertion that he was told by a medical professional that his psychiatric disability may be related to tinnitus. Of note, during a telephone encounter with VA on October 16, 2020, the Veteran stated that he instead spoke to a VA call center representative who told him his tinnitus could have contributed to his disability. Not only is such an opinion speculative, there is no indication that this call center representative had the requisite knowledge and expertise to provide such a medical opinion. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. (Continued on the next page.) In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.