Citation Nr: 21008437 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-31 453A DATE: February 17, 2021 ORDER Entitlement to service connection for a separate acquired psychiatric disorder, to include recurrent major depressive episodes, depression not otherwise specified, mood disorder, and adjustment disorder is denied. REMANDED Entitlement to service connection for alcohol use disorder is remanded. FINDING OF FACT The evidence is against a finding that the Veteran has a disability manifested by depression separate and distinct from the symptoms of his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include recurrent major depressive episodes, depression not otherwise specified, mood disorder, and adjustment disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board. In March 2018, the Board granted service connection for posttraumatic stress disorder (PTSD) and remanded the issue of whether the Veteran had a distinct psychiatric disorder separate from his service-connected disability PTSD. The case is once again before the Board. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran is entitled to the benefit of the doubt standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). With respect to evidence of current disabilities, the Veteran’s treatment records indicate the he has experienced depression. The issue is whether the Veteran has an acquired psychiatric disability that is separate from his service-connected PTSD. In July 2013, a VA examiner diagnosed the Veteran with adjustment disorder with depressed mood. The examiner concluded that the Veteran’s depression stemmed from his recent divorce. With respect to PTSD, it was noted that the Veteran had satisfied many of the criteria for a diagnosis of PTSD, but that his reported symptoms were not “at a level that would be consistent with PTSD” under the DSM-IV. This opinion was found to be inadequate in the Board decision mentioned immediately below, and service connection for PTSD was subsequently granted. In the March 2018 decision, the Board awarded service connection for PTSD and observed that the Veteran had claimed entitlement to psychiatric disabilities other than PTSD, including recurrent major depressive episodes, depression NOS, and a mood disorder. The Board noted that the record did not include a medical opinion on the etiology of his diagnoses of recurrent major depressive episodes or mood disorders which the Veteran contends have been present since service. It was further noted that the record also did not include an opinion on the etiology of the adjustment disorder diagnosed in the above-mentioned 2013 examination. As a result, the Board requested that the Veteran be afforded an examination to determine all acquired psychiatric disorders, to include those that may have resolved during the appeal period. For each diagnosed disorder, other than PTSD, the examiner should state whether it was related to service. The examiner should also comment on whether any identified disorder was secondary to his service-connected PTSD. Following the Board’s remand, the Veteran was afforded with an additional examination in October 2019 wherein he was diagnosed with PTSD and alcohol use disorder. No other acquired psychiatric disabilities were diagnosed. The examiner reported “disturbances of motivation and mood” and noted that the Veteran’s mood was depressed. See October 2019 VA examination. In June 2020, a VA examiner reported that since service, the Veteran has been diagnosed with a variety of depressive disorders including adjustment disorder with depressed mood, depressive disorder not otherwise specified, other recurrent depressive disorders, and major depressive disorder. After reviewing the Veteran’s medical records, the examiner opined that the Veteran’s depressive symptoms, which led to his diagnosis of depressive disorders, were at least as likely as not symptoms of his PTSD. In support of this opinion, the examiner noted that the Veteran’s disturbances of mood and motivation were recently attributed to his service-connected PTSD. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although he is competent to report feeling depressed, the Veteran is not competent to provide an opinion on whether he has a separate depression related psychiatric disorder. The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to render an opinion as to its etiology or an opinion as to his depression symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Making the latter determination requires medical training and an understanding of the DSM-5. Thus, to the extent that the Veteran contends that he has a separate depressive disorder, such statements are not competent opinions and they cannot be assigned any probative weight. Here, the Board finds the June 2020 opinion from a VA psychologist highly probative as it was made by a medical professional with consideration of the specific facts in this case. Moreover, the examiner had reviewed the file with consideration of the other depressive related diagnoses and determined that these depressive symptoms which lead to the diagnoses of depression were symptoms of the Veteran’s service-connected PTSD. The examiner also noted that disturbances of mood and motivation have been attributed to the Veteran’s PTSD. Accordingly, as evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided, a separate service connection grant for depression is not warranted. The Board has considered the diagnosed depressive disorders contained in the record but finds that the weight of the evidence indicates that the Veteran does not have a separate depression disability. Therefore, the claim for service connection for depression is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-57. REASONS FOR REMAND As noted above, the October 2019 VA examination diagnosed the Veteran with alcohol use disorder. Unfortunately, the examiner did not provide an opinion regarding the etiology of this disorder. The Board finds that an opinion is needed to determine whether the Veteran’s alcohol use disorder is related to his service-connected PTSD. Generally, compensation shall not be paid if a disability is the result of the veteran's own willful misconduct, or abuse of alcohol or drugs. 38 U.S.C. § 1110. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 38 U.S.C. § 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or the use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), reh'g denied, 268 F.3d 1340 (Fed. Cir. 2001) (en banc order). The Federal Circuit cautioned that veterans may only be awarded compensation if they could adequately establish that their alcohol or drug abuse disability was secondary to or caused by their primary service-connected disorder. Service connection remains precluded for primary alcohol and drug abuse and related disabilities that were due to willful wrongdoing. Id. at 1381. Therefore, an opinion is needed to determine the etiology of the Veteran’s alcohol use disorder. The matter is REMANDED for the following action: 1. Arrange for a VA examiner to review the file and opine as to whether it is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s service-connected PTSD either (1) caused or (2) aggravated the Veteran’s alcohol use disorder. Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.