Citation Nr: 21007966 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 09-10 043 DATE: February 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to hearing loss or tinnitus, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have an acquired psychiatric disorder that is causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran is not shown to have an acquired psychiatric disorder that is proximately due to or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met; service connection may not be presumed. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to April 1972 These matters come before the Board of Veteran’s Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to left ankle arthritis or tinnitus, is denied. The Veteran claims he has an acquired psychiatric disorder (other than PTSD) that is related to his active service. In the alternative, he alleges that it is secondary to his service-connected hearing loss and tinnitus. See November 2014 Opinion from Dr. H.H.G.; see also August 2020 Opinion from Dr. H.H.G. By way of procedural background, in April 2013, the Veteran filed a claim for service connection for “psych conditions.” See April 2013 Claim. An April 2014 rating decision denied service connection for a mood disorder. The Veteran filed a notice of disagreement, a SOC was issued, and the Veteran filed a Form 9 substantive appeal herein. Thereafter, he filed argument and evidence asserting service connection for depressive disorder. See October 2020 Appellate Brief. The Board has more properly characterized the appeal as for service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38U.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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may also be granted for a current disability proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38C.F.R. §3.310(b). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38C.F.R. §4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a nexus between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304. The Veteran does not contend he has PTSD and the evidence does not show a PTSD in accordance with 38C.F.R. §4.125(a). The Veteran’s service treatment records are silent as to any psychiatric complaints. He denied psychiatric symptoms on entrance and separation from service. See February 1972 Examination. Although the Veteran reports he was beaten to the point of unconsciousness while in the shower and that he reported this incident, the Board finds this is not credible due to inconsistency with the service treatment record, his own statements, and the Veteran’s denial of such injury on discharge. See February 1972 Report of Medical History; see also August 2020 Opinion. The Veteran has also made statements to treatment providers regarding in-service military sexual trauma, however, he later recanted these assertions and indicated that assault did not occur. See February 2020 Opinion. Based on his history of inconsistent and retracted statements regarding in-service injury, the Board finds the Veteran not credible as to these assertions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). There is no evidence of manifestations of psychosis within one year of the Veteran’s separation from service. Therefore, service connection for such may not be presumed. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Post-service treatment records do not show evidence of acquired psychiatric disorder prior to the Veteran’s April 2013 claim. As noted above, the Veteran provided an opinion from Dr. H.H.G. that the Veteran manifested a mood disorder that was aggravated by his hearing loss and tinnitus. The examiner noted they reviewed the claims file, however, Dr. H.H.G. did not cite to any of the Veteran’s medical records, including hearing loss examinations or service records, detailing specific complaints related to hearing loss and tinnitus and psychiatric disability. See November 2014 Opinion. In contrast, VA obtained an opinion addressing the Veteran’s contentions in March 2018 that indicates the Veteran has multiple medical disabilities and that his onset of depression was a gradual decline in mood in context of multiple medical conditions. Because this examiner appears to have used the wrong standard of proof, the Board attributes no probative value to the March 2018 opinion. In February 2020, the RO obtained an additional opinion that indicates the examiner reviewed the treatment records and addressed whether the Veteran’s service or service-connected disabilities caused or aggravated acquired psychiatric disorder. The examiner indicated the Veteran’s depressive disorder was caused by his overall condition and multiple medical complications and was less likely than not caused or aggravated by service or service-connected hearing loss and/or tinnitus. In regard to the medical disabilities the examiner found were implicated in his depression, the Veteran was noted to be paraplegic with multiple complications as a result of a traumatic injury in 2015. The examiner opined that a baseline for depression could not be determined, but regardless of baseline, the Veteran’s depression was not aggravated beyond the normal progression of the disease by hearing loss and tinnitus. See February 2020 Opinion. The Veteran submitted a statement in October 2020 where he recounts a version of his reported assault in the shower; he did not report that he suffered a loss of consciousness, that he sought treatment, or reported the incident. See October 2020 Statement. The Veteran also submitted a statement from his sister that asserts the Veteran displayed symptoms of nightmares, irritability, and social withdrawal, as well as symptoms of hearing loss after service. The Veteran’s sister stated that the Veteran’s hearing loss embarrasses him. See October 2020 Statement. The Veteran’s representative and Dr. H.H.G. also submitted medical articles regarding effects of depression on the association between military service and life satisfaction and guilt, shame, and suicidal ideation in a military outpatient clinical sample. For reasons discussed above, the Board finds the Veteran’s reported history of physical and sexual assault in service to be not credible as it is not supported by his service records, and because his own statements are inconsistent and therefore not credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (“the Board as fact finder is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); Caluza, supra (“The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements”). The Board emphasizes that this is not a case where there is a lack of service treatment records; rather, he has several records of treatment in service, but never for any psychiatric complaints, or reports of physical assault or sexual assault, or treatment for head injury with loss of consciousness. Therefore, to the extent any clinician might have related any symptoms to such reported events, which are shown to be not credible, the Board finds such medical opinion to have no probative value. Regarding secondary service connection, the Board finds the preponderance of the evidence is against finding that the Veteran has any acquired psychiatric disorder that was caused or aggravated by his service-connected hearing loss or tinnitus. The Board finds the only medical opinion addressing such a contention, prepared by Dr. H.H.G, to lack an adequate rationale and therefore have no probative value. Dr. H.H.G. reasoned very generally that the Veteran’s depressive disorder was aggravated by hearing loss and tinnitus, but without supporting rationale or citation to the Veteran’s medical record, as opposed to medical articles. Dr. H.H.G. also failed to identify a baseline for depressive disorder prior to aggravation or discuss the Veteran’s post-service medical history, which is significant for lumbar spinal fusion prior to traumatic spinal cord injury and paraplegia. Dr. H.H.G. also never discussed how the articles submitted supported the opinions finding depression was aggravated by service-connected disability or was alternatively incurred in service and continued to the present. To the extent that the Veteran or his sister opines that he does have an acquired psychiatric disorder that is related to his service or service-connected disability, the Veteran and his sister are not shown to have the training, medical expertise, or credentials to competently diagnose a psychiatric disability and etiologically link it to his service or service-connected disability. See King v. Shinseki, 700 F.3d 1339 (2012). The Board has considered the Veteran’s statements to treatment providers, examiners, and to the agency holistically and finds that indicia of credibility are lacking due to inconsistency with the service treatment record, his own statements, and the Veteran’s denial of such injury on discharge. See Southall-Norman v. McDonald, 28 Vet. App. 346, 356 (2016). In summary, the Board attributes greater probative value to the February 2020 opinion than the November 2014 or August 2020 opinions from Dr. H.H.G., the Veteran’s assertions, or his sister’s reports. The February 2020 examiner’s opinion 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). (Continued on the next page)   Accordingly, the Board concludes that entitlement to service connection for an acquired psychiatric disability is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.