Citation Nr: 21008626 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-58 696 DATE: February 17, 2021 ORDER Service connection for a psychiatric disorder, to include anxiety, depressive disorder, schizophrenia, manic depression, and organic brain syndrome is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a psychiatric disorder that is causally related to his service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include anxiety, depressive disorder, schizophrenia, manic depression, and organic brain syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1975 to October 1977. This matter comes before the Board on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied the Veteran’s service connection claim for a psychiatric disorder. The Veteran appealed the Board’s decision to the Court. A January 2020 Joint Motion for Partial Remand (JMR), prepared by the parties and approved by the Court, vacated and remanded the Board’s denial of the Veteran’s service connection claim for a psychiatric disorder. The Board notes that in the JMR, the Veteran declined to appeal the portion of the Board’s decision that denied service connection for attention deficit disorder and attention deficit hyperactivity disorder, and as such, that issue is not part of the instant appeal. In July 2020 the Veteran was informed that he did not sign the VA Form 21-4142 that is required for VA to obtain private medical records on his behalf. The Veteran again submitted an incomplete form in August 2020 because he did not list any private medical providers. The duty to assist is not a one-way street; a veteran is obliged to cooperate in the development of a pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will decide this matter based on the evidence of record as it is currently developed. This matter was remanded in a June 2020 Board decision for action consistent with the January 2020 JMR. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service connection for a psychiatric disorder, to include anxiety, depressive disorder, schizophrenia, manic depression and organic brain syndrome Legal Criteria Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain identified chronic diseases, including “psychoses,” may also be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree within a prescribed period following separation from service. 38 U.S.C. § 1112 ; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). The term “psychosis” means any of the following disorders listed in the DSM-V: (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to Another Medical Condition; (d) Other Specified Schizophrenia Spectrum and Other Psychotic Disorder; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; and (h) Substance/Medication-Induced Psychotic Disorder. 38 C.F.R. § 3.384. To the extent any of the Veteran’s currently diagnosed disabilities may be classified as “psychoses,” for the reasons explained below, the presumption of service connection for chronic diseases under 38 C.F.R § 3.309 (a) does not apply in this case because the record does not show any diagnosis of a “psychosis” within one year of the Veteran’s separation from service. 38 U.S.C. §§ 1131, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background & Analysis The Veteran contends that his psychiatric disorder was caused by his active duty service. See April 2019 Correspondence. A review of the service record reveal that the Veteran had behavioral and performance issues during service. For instance, in August 1976, the Veteran was counseled for deficiency in his military behavior and marked for unauthorized absence. In October 1976, the Veteran violated several offenses such as communicating threats, failure to obey orders, and drunk and disorderly conduct. In July 1977, the Veteran was absent from his unit, displayed a negative and disruptive attitude, and was informed of his low performance. The Veteran has a current psychiatric disorder. At the April 2015 VA examination he was diagnosed with unspecified schizophrenia spectrum and other psychotic disorder. In an April 2019 private medical opinion, a counselor noted that the Veteran’s medical file indicates a diagnosis of schizophrenia and manic depression. The counselor opined that the Veteran’s likely diagnosis should be anxiety and depressive disorder. The counselor also opined that it is highly likely that his anxiety and depression had their origins in, and are related to, the Veteran’s active military service. However, the counselor did not provide a rationale to explain the opinion. Following an October 2020 VA psychological examination, a VA examiner opined that the Veteran did not have any psychiatric disorders that are causally related to his service. The following rationale was provided: “The veteran exhibits a diagnosis of Schizophrenia Spectrum Disorder Paranoid Type. There is no evidence of a major mental disorder on active duty. The disciplinary infractions on active duty are just that and are less likely than not markers of schizophrenia spectrum disorder. Why is this? We had no actual intervention for mental health in service that is discoverable. Secondly, I have no evidence of a mental disorder intervention within 6 months of his discharge from service. Second, there is no mental health intervention within one year, two years, or a decade or longer after separation of active duty service. The latter information is negative for a nexus for his current diagnosis of a schizophrenia spectrum disorder. The Veteran does not have a diagnosis of and medical findings leading to an organic cause of a mental disorder in service. The veteran does not exhibit an organic mental disorder based upon my examination with his history taken into consideration. The veteran does not exhibit a bipolar spectrum, mood spectrum, or anxiety spectrum disorder at this time so this cannot relate to any injury, event, or illness on active duty service. The disciplinary issues in service are less likely than not markers for bipolar, depressive, anxiety or organic spectrum disorders on active duty service.” After carefully considering the above medical evidence, the Board finds that the October 2020 VA examiner’s negative nexus opinion is entitled to more probative weight than the April 2019 private medical opinion. Critically, the April 2019 opinion does not provide a rationale for his conclusion that it is “highly like that such disorders (anxiety and depression) had their origins in, and are related to, the Veteran’s active military service.” Consequently, because this opinion does not reveal how it applied its principles and methods to this Veteran’s medical history, it is afforded diminished probative value. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Further, it is not clear that the licensed counselor who offered this opinion has the medical training necessary to diagnose a mental health disorder. Whereas the October 2020 VA psychological examination and opinion were undertaken by a clinician with a Ph.D. in clinical psychology. The VA examiner’s opinion also contains an adequate rationale with reference to the Veteran’s medical history and is therefore dispositive as to the nexus element of the Veteran’s service connection claim at issue in this matter. Additionally, the Board has considered the lay statements made by the Veteran, his representative and his family members regarding his psychiatric symptoms. These individuals are not competent to provide a nexus opinion regarding this issue because the record does not show that they the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2020 VA examiner’s opinion which was authored by a licensed psychologist following an examination of the Veteran. As the preponderance of the evidence is against a finding that the Veteran’s psychiatric disabilities are related to service, the claim must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.