Citation Nr: 21006835 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-24 974 DATE: February 5, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ § 101(21), (24), 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to July 1972 and from February 2003 to December 2003. He also had service in the National Guard. The issue was previously before the Board in December 2016 and April 2019. On those occasions it was remanded for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that service connection should be established for an acquired psychiatric disorder that has been diagnosed as a depressive disorder. He believes this disorder is related to his periods of active or reserve duty. 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-element test for service connection requires evidence of: (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). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). 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 had a current diagnosis of depression, the evidence does not demonstrate any complaint or manifestation of an acquired psychiatric disorder during service. Moreover, the most recent examination for the purpose of ascertaining the etiology of any acquired psychiatric disorder failed to find the presence of such a condition. As such, the preponderance of the evidence weighs against finding that any acquired psychiatric disorder that has been diagnosed began during service or is otherwise related to an in-service injury, event, or disease. Review of the Veteran’s service treatment records (STRs) shows that he had no complaint or manifestation of an acquired psychiatric disorder while he was on active duty. Quadrennial and other examinations conducted in connection with the Veteran’s reserve duty, including on reserve examination for National Guard retention in August 2004, include medical history forms that give no indication of psychiatric complaints. Psychiatric clinical evaluations were normal throughout. In a January 2013 letter, the Veteran’s private psychiatrist stated that the Veteran had started receiving psychiatric treatment in July 2009. Symptoms included depression, anxiety social isolation, insomnia and flashbacks from when the Veteran was on active duty. The examiner stated that the condition was related to traumatic events that the Veteran had while in active combat. An examination was conducted by VA in December 2017. At that time, the diagnosis was unspecified depressive disorder. The examiner rendered an opinion that the condition was less likely than not incurred in or caused by a claimed in-service, injury, event or illness. The rationale was that the Veteran’s STRs were silent for behavioral health referrals, personal requests, findings, diagnoses or treatment for a mental disorder. The examiner found that the Veteran began mental health treatment in August 2010 due to work-related problems in the municipality of Guayama and was diagnosed with an adjustment disorder with anxious mood at that time. He began mental health treatment with a private psychiatrist and was diagnosed with major depressive disorder, mood disorder, anxiety, and panic disorder. It was also noted that the Veteran had suffered a right basal ganglia ischemic stroke in August 2015 and was in a rehabilitation hospital for physical therapy when there was no record of receiving mental health treatment. Therefore, the examiner concluded the unspecified depressive disorder had no nexus to his military service. In an August 2018 addendum medical opinion, the examiner opined that it was less likely than not that the Veteran’s psychiatric condition began in, or was etiologically related to, or permanently worsened by, any period of ACDUTRA or that any psychiatric disorder was due to an injury incurred during a period of or aggravated during a period of INACDUTRRA. The rationale was that the Veteran had begun mental health treatment as a result of work-related problems. An additional psychiatric examination was conducted by VA in November 2019. At that time, the examiner stated that, after examination, no mental disorder diagnosis could be made. The examiner noted that the Veteran had a past history of psychiatric treatment due to occupational difficulties for a short period. There was no history of hospitalization or emotional crisis and the Veteran had been found to be mentally competent and stable. The examiner found that the Veteran did not fulfill the symptoms criteria for any diagnosis of a psychiatric disorder. It was noted that his military service did not cause impairment in social, occupational or other areas of functioning. There was no change in functional status or in quality of life due to military service. The Veteran also did not have impairment in marital life, parenting relations, social, occupational or other areas of functioning. He was living a very successful social and retired life after 38 years as an accountant. Therefor, no diagnosis could be made. As there was no diagnosis, the examiner could not furnish any opinion regarding an etiology. The examiner went on to state that, regarding past psychiatric history, the Veteran’s depressive disorder was not due to, related to, incurred in, or associated in any way to military service. The Veteran sought formal psychiatric treatment around seven years after his last period of service in 2003. A temporal relationship between the neuropsychiatric disorder and the Veteran’s military service was not established. The depressive disorder had been resolved since 2013 and bore no relation with military service. Regarding secondary service connection, it was also opined that the Veteran’s past depressive disorder was not due to, secondary to, incurred in, or associated in any way to his service-connected hypertension, migraine, or tinnitus. The examiner again explained that the Veteran had sought psychiatric care around 2010, almost 7 years after hypertension, migraine, and tinnitus. There was no relation between these service-connected disabilities and the mental condition diagnosed around 2010. The service-connected conditions, in terms of etiology or pathophysiology were not related one with the other. It was determined that the Veteran’s diagnosed depressive disorder and the service-connected hypertension, migraine, and tinnitus were in different time frames, different etiology, different pathophysiology and different anatomical systems. They had no relation with one another. The record shows that the Veteran was not diagnosed with an acquired psychiatric disorder until 2009, several years after his separation from service. While the Veteran is competent to report having experienced symptoms of depression since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic acquired psychiatric disorder. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the VA examiners have opined that any acquired psychiatric disorder is not at least as likely as not related to an in-service injury, event, or disease. The examiner’s opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran’s treating physician stated that the Veteran had a psychiatric disorder that was related to combat the Veteran was exposed to in service, the treating physician provided no further elaboration for that opinion and the Veteran has not related that he was exposed to such combat and the record does not demonstrate such activities during service. Moreover, the most recent examination of record fails to show any acquired psychiatric disorder. The Board gives more probative weight to the opinions of the VA examiners. (Continued on the next page)   For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.