Citation Nr: 21008101 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-16 604 DATE: February 11, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT An acquired psychiatric disorder was not manifest during active service and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1977 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). It is noted that the Board previously denied service connection for PTSD as a matter of law in a July 2018 decision. See38 C.F.R.§3.303(c), 4.9. Board decisions are final when issued and therefore that issue will not be readjudicated. This matter was previously remanded in July 2018 and July 2020 for further development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Unfortunately, the Veteran's service personnel records are missing. A formal finding was issued in September 2010 indicating that the records were unavailable and any further attempt to locate the records would be futile. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records (STRs) and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). In cases such as this in which personnel records are incomplete or unavailable, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992) However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a Veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Veteran's personnel records are not available because they were lost. Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Service Connection Generally, service connection for a disability requires 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). Service connection for PTSD having previously been denied by the Board, the Veteran has also claimed entitlement to service connection for an acquired psychiatric disorder, other than PTSD. The Veteran contends that his condition is due to experiences during his active service. Service treatment records are silent for any complaints, treatment or diagnosis of an acquired psychiatric disorder during active service. Notably, the Veteran’s January 1980 separation examination did not note any psychiatric symptoms such as depression or excessive worry, nervous trouble of any sort, or frequent trouble sleeping. VA treatment records indicate that the Veteran was diagnosed with depressive disorder in April 2009 and has received ongoing treatment for this condition. VA provided the Veteran with an examination for his acquired psychiatric disorder in February 2015. At that time the examiner diagnosed posttraumatic stress disorder and unspecified depressive disorder. During the examination the Veteran described several incidents while in service that he felt caused his current symptoms, including being accused of stealing $100, which led to a criminal investigation; being assaulted during a “blanket party” in which six people held him down and hit him with soap wrapped in towels; and having appendicitis which resulted in emergency surgery and hospitalization for a month. The Veteran also reported that subsequent to service he worked as a correctional officer from 1988 to 1995. Ultimately, the VA examiner determined that none of the Veteran’s reported in- service stressors were adequate to support a diagnosis of PTSD. The examiner rather opined that the Veteran’s PTSD was secondary to his experience as a correctional officer. Specifically, the examiner noted that a review of the Veteran’s VA mental health records consistently indicated he was being treated for “depressive disorder NOS and PTSD (work related as a correctional officer).” Although the examiner opined that it was less likely than not that the Veteran’s PTSD was related to military service, the VA psychologist did not submit a nexus opinion on the Veteran’s depression. Therefore, in the June 2018 decision the Board denied the claim for service connection for PTSD and remanded the matter to obtain a medical opinion to determine if the Veteran’s depressive disorder was related or attributable to his time on active duty. The Veteran was afforded another VA examination in March 2019. At that time however the examiner conducted another PTSD examination in conjunction with a psychiatric evaluation for conditions other than PTSD. The examiner noted a diagnosis of PTSD and major depressive disorder and opined that the Veteran’s depression was secondary to his PTSD. The examiner explained that the Veteran’s trauma was triggered by events in the external environment which led him to isolate, and his isolation tendencies resulted in depression and further alienation. The examiner opined that it was as least as likely as not that the Veteran’s PTSD was due to his active service. The examiner also indicated that the Veteran did not experience any type of event at his job as a correctional officer that would contribute to his PTSD. In a June 2020 Board decision, the Board noted that this opinion was in contradiction to the February 2015 VA examination as well as VA treatment records. The Board noted that it appeared that the March 2019 examiner based the opinion on the Veteran’s lay statements and did not address the previous 2015 determination and VA medical records. As such, in June 2020 the Board determined that the March 2019 examiner was not fully informed of the relevant facts and therefore the opinion was not sufficient to grant the Veteran’s claim for entitlement to service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (indicated that a medical expect is to be informed of the relevant facts). The Board also noted that although the examiner determined that the Veteran’s depressive disorder was secondary to PTSD, as the Veteran is not service-connected for PTSD, secondary service connection for depressive disorder therefore could not be sustained. 38C.F.R. §3.310. Therefore, the matter was remanded again to obtain a medical opinion to clarify the nature and etiology of the Veteran’s depressive disorder. In August 2020 a Medical Opinion and Disability Benefits Questionnaire (DBQ) was completed. The examiner opined that the Veteran’s depressive disorder was less likely than not related to his military service. In providing a rationale the examiner stated that upon review of the claims file there were no medical records which supported that the Veteran had any mental health issues while in service. Also, in addition to there being no consistent medical records which stated that the Veteran’s depressive disorder was related to service, there were also a number of other factors which contributed to the Veteran’s depression and were noted in his medical records. The examiner also pointed out a December 2018 note in the Veteran’s treatment records which indicate that the Veteran’s reasons for depression include his withdrawal from a PhD program, not having a job, and his wife emasculating him. This treatment note also stated that his military service was noted to not be significant for stress or trauma. The Board finds the August 2020 VA opinion to be of great probative value. Indeed, the examiner considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner's negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to provide statements as to his beliefs that his psychiatric disorder is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his acquired psychiatric disorder, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran's last date of active service in June 1980, and his treatment for depression in April 2009 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus between the Veteran’s depressive disorder and active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for an acquired psychiatric disorder is not warranted. The Board notes a current diagnosis of a depressive disorder, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's lay statements are noted. However, the service and private medical records do not establish a diagnosis of clinical psychiatric disorder to include a depressive disorder, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In summary, the medical evidence in this case outweighs the Veteran's assertions that his current acquired psychiatric disorder is related to his active service. For these reasons, the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.