Citation Nr: 21008654 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-20 141A DATE: February 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected patellofemoral pain syndrome, is denied. FINDING OF FACT The preponderance of the evidence does not show a diagnosis of a current psychiatric disability during the pendency of this appeal. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, due to service or service-connected patellofemoral pain syndrome, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from December 2010 to June 2011. This case returns to the Board of Veteran’s Appeals (Board) after an April 2018 and an April 2019 Board remands in response to a January 2012 denial of the claim by the Department of Veterans’ Affairs (VA) Regional Office. The Board finds that the April 2019 Board remand instructions were substantially complied with and therefore the Board now adjudicates the substantive claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection will be presumed for certain chronic diseases, if they were manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran can provide competent reports of factual matters of which she has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but need not discuss each and every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected patellofemoral pain syndrome The Veteran seeks service connection for an acquired psychiatric disorder due to her active military service. She also contends that her depressive disorder is a result of her knee condition, the medication she took for her knee condition, and the fact that her knee condition led to her early separation from the Navy. See November 2020 Appellate Brief. Alternatively, the Veteran contends that her depressive disorder was aggravated by her service-connected knee condition. The Veteran’s service treatment records reflect that in April 2011, she reported that her medication was making her depressed. Later that same month, her service treatment records note an assessment of depression and referral for counselling. As such, an in-service element is met. The preponderance of the evidence, however, does not indicate that the Veteran has had a diagnosed psychiatric disorder at any time during the pendency of her claim or show evidence of that the claimed disorder is related to her military service or a service-connected disability. Post-service, the record contains a September 2011 VA examination diagnosing the Veteran with depressive disorder, not otherwise specified. The examiner did not provide an opinion as to the etiology of the diagnosis. A January 2012 VA mental health examination report reflects the examiner’s finding that the Veteran had no diagnosable mental disorders. This examination addressed all of the Veteran’s reported symptoms, family, social, and military history and post-service history. The July 2012 examiner provided a well-supported reasoning and bases for the finding of no mental health disorders, which was based on review of the claims file and examination of the Veteran. The July 2012 examiner noted that the Veteran has never been treated for any mental illness, either in the Navy or subsequently. The examiner also noted that the Veteran’s records identify mood swings and depression secondary to pain medication she was taking for her knee while in service. The examiner recorded the Veteran’s report that after she initially returned home after service, her father noted that she did not seem “as happy as she used to be.” The Veteran reported that after establishing new routines, friendships, and a job, she felt her mood had improved. Based on these and other findings, the January 2012 examiner opined the Veteran’s reported symptoms to be transitory in nature and that the Veteran did not have any mental health disorders. In the April 2018 and April 2019 remands, the Board noted to need to resolve the apparent conflict between these two diagnostic findings so close in time. This resulted in the January 2019 and December 2019 VA examination addendum opinions. Both the January 2019 and December 2019 addendum opinions explained why the September 2011 diagnosis was in error. The Board finds that the December 2019 addendum opinion substantially complies with the Boards April 2019 remand directives and is sufficient with to decide this case on. Therefore, another remand for another opinion is not necessary. The December 2019 examiner is a board licensed psychiatrist qualified to provide such an opinion. The examiner was specifically advised that the Veteran is competent to attest to observable symptoms and to provide appropriate weight to any such statements. The December 2019 opinion is provided by a licensed psychiatrist who responded to the inquires set out in the remand and supported his opinion with a thorough explanation identifying the pertinent facts of record. Specifically, the opinion addressed three items: the September 2011 opinion, direct service connection, and secondary service connection. The December 2019 opinion first addresses the September 2011 opinion and its shortfalls. The December 2019 examiner noted that the September 2011 opinion provides no history, narrative, or description of symptoms provided by the Veteran. As noted by the December 2019 examiner, the checked boxes in section three of the September 2011 examination report (which the Board notes is entitled “Occupational and social impairment”) are not consistent with a diagnosis of depressive disorder NOS, nor with the facts of record. As an example, the December 2019 examiner highlighted that the September 2011 examination report noted the Veteran with impaired impulse control, but the record, including statements made by the Veteran, do not identify impaired impulse control. The December 2019 examiner also noted that the September 2011 finding that the Veteran experienced “near continuous panic or depression affecting the ability to function independently” was not supported by her service records. The examiner stated there were other examples of “erroneous symptoms that were simply checked in [the September 2011] exam and not supported by the record, historical/narrative information or psychological testing.” The December 2019 examiner then addresses the specific symptoms and treatment of record. The Veteran’s medical records identify that she was seen for mood swings and depression, which the Veteran, herself, indicated was caused by a reaction/side effect to the medication she was placed on for her knee in April 2011. The examiner noted that during her May 2011 separation physical, the Veteran denied depression or any signs or symptoms associated with it. As such, the examiner concluded that the Veteran’s reported mood swings and depression were transient in nature and a reaction to her medication, and did not meet the full criteria for any mental health disorder. As further support for this conclusion, the examiner noted that the January 2012 VA mental health disorder examination finding no diagnosable mental health disorders, that an October 2012 VA screening for depression was also negative for any mental health disorders, and that all subsequent available records are silent as to depression or any mental health disorder. The examiner therefore opined that the Veteran does not and has not met the full criteria for a mental health disorder. The preponderance of the evidence fails to establish that the Veteran has had a psychiatric disorder at any time during the appeal period that is incurred in or due to service, or that she currently has a psychiatric disability secondarily related to a service-connected disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) ( disability exists under 38 U.S.C. § 1110 where there is functional impairment). In this case, the most probative evidence of record is the December 2019 examiner’s opinion, which thoroughly explains why the evidence does not support a psychiatric diagnosis at any time. The December 2019 examiner’s opinion is highly probative, as it was based on an in-person examination of the Veteran and review of the medical records, the examiner provided extensive rationale for his findings, and it is consistent with the other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrier v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no probative medical evidence of record that rebuts the December 2019 opinion or otherwise diminishes its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). As such, the evidence does not support the Veteran's claim for service connection. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Based on the December 2019 examiner’s opinion, the Board finds that the September 2011 diagnosis to be inaccurate and not supported by the facts of record. Thus, the September 2011 diagnosis is not afforded any probative value. The Board notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the statements including the Veteran’s April 2012 statements, that she has an acquired psychiatric disorder, to include a depressive disorder. Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau, 492 F.3d at 1376-77. In this case, the Veteran is competent to report psychiatric symptoms, but is not competent to diagnose the presence of an acquired psychiatric disorder. Psychiatric disorders are by their very nature complex disabilities that require specialized training to properly diagnose. The Veteran is competent to identify and explain the symptoms that she observes and experiences, but psychiatric disorders require more than a simple observation of symptoms. As such, the Board finds the opinions of the December 2019 and January 2012 examiners are more probative than the Veteran’s lay assertions because the VA examiners’ opinions are provided by medical professionals specially trained to address mental health concerns and provided opinions consistent with the competent and credible objective evidence of record. Therefore, the Board finds that the preponderance off the evidence establishes that the Veteran does not have a diagnosis of an acquired psychiatric disorder, to include depressive disorder not otherwise specified during the appeal period. As such, the criteria for service connection are not met and the Veteran’s claim must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.