Citation Nr: 21015523 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-00 877 DATE: March 17, 2021 ORDER Service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s acquired psychiatric disorder did not have onset in and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder, have not been 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 May 1988 to August 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for PTSD to include anxiety, depression, sleeplessness, memory loss and substance abuse. In August 2012, VA received the Veteran’s Notice of Disagreement (NOD). In October 2014, the RO issued a Statement of the Case (SOC). In December 2014, VA received the Veteran’s VA Form 9 appeal to the Board. In June 2018, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) other than the undersigned. A transcript of that testimony is associated with the claims file. In a September 2018 decision, the Board expanded the claim to include all psychiatric disorders, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), but denied the Veteran’s claim for service connection for an acquired psychiatric disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a May 2019 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board’s September 2018 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. In October 2020, the Board denied service connection for PTSD and remanded the case back to the RO for additional development and adjudication regarding entitlement to service connection for an acquired psychiatric disorder other than PTSD. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder. The Veteran contends that his current acquired psychiatric disorder is related to his service in Korea. He has reported experiencing symptoms of depression, sleep disturbances, difficulty sleeping, and alcohol abuse during service. The Veteran believes that these in-service symptoms are related to his current major depressive disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.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). A diagnosis of a mental disorder must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). During the pendency of the Veteran’s appeal, the VA amended the applicable regulations to transition to the use of the DSM-5. See 80 Fed. Reg. 14,308 (March 19, 2015). The provisions of the final rule only apply, however, to all applications for benefits that are received by the VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. As of August 4, 2014, this claim was still pending before the AOJ. Therefore, diagnoses under the DSM-IV are still applied to the Veteran’s claim. In general, no compensation shall be paid for a disability if the disability is the result of a veteran’s own willful misconduct or abuse of alcohol or drugs; however, a veteran is not precluded from receiving compensation for an alcohol abuse disability acquired as secondary to, or as a symptom of, a veteran’s service-connected disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.301; see also Allen v. Principi, 237 F.3d 1368, 1375 (Fed. Cir. 2001). During service, the Veteran claims to have developed psychiatric symptoms following several traumatic incidents. First, he reports that a friend was killed during a tank training accident; he did not witness the death. See April 2011 Veteran statement. Second, the Veteran indicated that he was involved in an accident in which his tank flipped over and took on water, and he feared that he would drown. See June 2018 Board hearing transcript. Third, he claims to have felt general fear and anxiety due to service near the Korean demilitarized zone (DMZ) during times of tension between North and South Korea. See April 2011 Veteran statement. As noted above, the Veteran has reported symptoms of depression, sleep disturbances, difficulty sleeping, and alcohol abuse during service. See Dr. T., October 2019 private psychiatric evaluation. Regarding his in-service alcohol use, the Veteran has indicated that he began drinking heavily “to cope” with his stressful experiences while serving in Korea. See id. He has reported receiving an Article 15 drunken and disorderly citation during service. See December 2011 VA examination report. However, service treatment records (STRs) provide no evidence of mental health symptoms or treatment. Furthermore, the Veteran’s service personnel records do not show that he received an Article 15 drunken and disorderly citation during service. Several months after discharge, the Veteran’s daughter was killed in an attack by his mother-in-law’s dog. See Dr. T., October 2019 private psychiatric evaluation. A February 2020 VA examination report revealed that the Veteran has “obsessive memories about the event.” The Veteran and his wife were subsequently divorced. Later, the Veteran’s sister passed away at a young age from cancer. See VA addendum to initial psychiatric evaluation dated July 13, 2013. The Veteran has also reported struggling with homelessness, lack of employment, and 12 separate incarcerations. See Dr. T., October 2019 private psychiatric evaluation. In December 1995, the Veteran sought VA treatment for crack cocaine and alcohol abuse, “x 7 months and 15 yrs,” respectively. See psychiatric progress note dated December 13, 1995. A private psychosocial assessment from October 2006 provides the first medical evidence of psychiatric diagnoses and symptoms. At the time of the assessment, the Veteran reported sleeplessness, concentration difficulties, aggression, anxiety, and memory problems, among other symptoms. He received diagnoses of major depressive disorder and recurrent cocaine dependence, early full remission. See psychosocial assessment dated October 4, 2006. In December 2010 and May 2011, the Veteran reported symptoms of depression and anxiety since 1992 to VA treatment providers. See psychiatric progress note dated May 6, 2011; ambulatory care outpatient follow-up progress note dated December 16, 2010. Another December 2010 treatment note reflects that the Veteran stated that his depression was related to his homelessness. See behavioral health clinic consult response dated December 28, 2010. A December 2011 VA examiner opined that the Veteran’s psychiatric symptoms “could” be related to fear of hostile military activity; however, he subsequently indicated that the Veteran’s “polysubstance abuse … would be more likely than not to cause mood disorder symptoms.” December 2011 VA examination report. A July 2013 addendum to a PTSD program initial assessment concluded that “numerous losses of family members, especially the loss of his daughter, is the source of his most severe PTSD and depressive sxs as well as guilt.” During the assessment, the Veteran “acknowledged a history of substance use as a means to self-medicate against his symptoms of PTSD.” Furthermore, during the interview for the assessment, the Veteran indicated that he only witnessed a tank flip rather than being in the tank himself. See VA addendum to initial psychiatric evaluation dated July 13, 2013. Initially, the Veteran is competent to describe lay observable psychiatric symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). However, he is not competent to opine that his current psychiatric diagnosis is related to in-service symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against lay evidence in determining credibility, but cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, 492 F. 3d at 1377; Buchanan, 451 F. 3d at 1331. Regarding the credibility of the Veteran’s statements describing symptoms during service, as noted above, STRs provide no indication of mental health symptoms or treatment. Furthermore, statements made by the Veteran for purposes of VA treatment prior to the Veteran’s initial claim for service connection for PTSD indicate onset of psychiatric symptoms in approximately 1992, or after discharge from service. Outside of evidence of treatment for substance abuse in 1995, the record contains no indication of psychiatric symptoms or treatment until 2006. Moreover, all statements regarding onset of symptoms during service have been made in connection with the Veteran’s claim for compensation. In light of the above, the Veteran’s statements regarding onset of psychiatric symptoms during service are inconsistent with the evidence of record. Nevertheless, the Veteran has remained consistent throughout the period on appeal regarding his alcohol usage during service and VA treatment records dated as early as 1995 suggested that he drank to excess during service. Accordingly, the Veteran’s statements regarding his alcohol usage during service are credible. Turning to the recent medical opinions of record, in December 2019, VA received a private psychological evaluation report completed by Dr. T., Ph.D. Dr. T. interviewed the Veteran over the phone and reviewed the claims file. She concluded that the Veteran had diagnoses of PTSD and major depressive disorder under the DSM-IV and DSM-5 and, furthermore, that the Veteran had a diagnosis of alcohol use disorder which “developed secondary” to his psychiatric symptoms as a coping mechanism. She also provided a positive nexus between PTSD and service based on anxiety about a hostile attack, concluding that “events after service were not the cause of [the Veteran’s] current condition” because “symptoms of depression and PTSD” predated the death of his daughter. Specifically, Dr. T. found that the Veteran’s “symptoms of depression emerged while he was in service as he reported that he began to experience depressed mood, difficulty sleeping, irritability and difficulty concentrating while stationed in Korea.” A February 2020 VA examination for the Veteran’s claimed PTSD yielded a diagnosis of unspecified mood (affective) disorder. The February 2020 examiner did not provide a nexus opinion. Following the October 2020 Board remand, in December 2020, the Veteran received a VA examination and opinion for his claimed acquired psychiatric disorder. The December 2020 examiner interviewed the Veteran and reviewed the claims file, which included the December 2019 private opinion and the February 2020 VA examination report. Furthermore, the examiner noted that the Veteran reported experiencing anxiety during service because of the Korean conflict. She provided a diagnosis of depressive disorder. Regarding the etiology of the depressive disorder, the examiner opined that the depressive disorder was less likely than not incurred in or caused by an in-service injury, event or illness. In this regard, she reasoned that “the Veteran began to receive substance abuse treatment for alcohol and crack cocaine in [the] mid 90’s.” Furthermore, the examiner noted that the Veteran “has reported multiple stressors related to crack cocaine and alcohol addiction including homelessness, unemployment, and incarcerations.” She also indicated that, during the examination, the Veteran “reported feeling down and frustrated with his life situation (living with mother and not having a good social life.” In conclusion, the examiner found that the Veteran’s “diagnosed depressive disorder is at least as likely as not related to post discharge stressors associated with [a] history of long-term polysubstance abuse, legal problems, poor relationships, history of homelessness and unemployment.” Turning to the probative value of the medical opinions of record, the following factors are considered when evaluating the probative value of medical opinions: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Regarding the December 2019 private psychological evaluation report completed by Dr. T., it is reliant on the Veteran’s statements regarding symptoms during service, which, as noted above, are inconsistent with other evidence of record. Therefore, as the December 2019 opinion depends on unsupported factual premises about the Veteran’s medical history, Dr. T.’s conclusions regarding nexus of the Veteran’s major depressive disorder and alcohol use disorder to in-service symptoms are afforded no probative value. Regarding the February 2020 VA examination report, the examiner offered no opinion regarding nexus of the Veteran’s current symptoms to service. Accordingly, no further discussion of the February 2020 examination report is warranted. Regarding the December 2020 VA opinion, the examiner considered the Veteran’s medical history and lay statements regarding in-service symptoms. Furthermore, she provided a fully articulated opinion based on a reasoned analysis based on the Veteran’s post-service medical history and life events following service. Accordingly, the December 2020 opinion is afforded significant probative value. Regarding the other nexus evidence of record, while the December 2011 examiner found that the Veteran’s psychiatric symptoms “could” be related to fear of hostile military activity, this opinion does not provide the required certainty for establishing a medical nexus. Accordingly, it is afforded no probative value. Furthermore, regarding the July 2013 addendum to a PTSD program initial assessment, the assessment was completed by a treating VA psychologist and involved a lengthy interview with the Veteran. The VA psychologist concluded that the Veteran’s psychiatric symptoms were more likely related to post-service life events. In light of the above, the July 2013 addendum is afforded some probative value. Notably, the October 2020 Board remand instructed the December 2020 examiner to comment on the February 2020 VA examination report. Although the examiner did not explicitly identify the report, she indicated review of the claims file and evaluated whether the Veteran had a mood disorder, diagnosed as “unspecified mood (affective) disorder” by the February 2020 examiner and “depressive disorder” by the December 2020 examiner, that was related to service. Furthermore, her analysis addresses the pertinent medical history identified in the February 2020 examination report. Accordingly, the December 2020 substantially complies with the October 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Veteran’s symptoms may have manifested within one year of service, in approximately 1992, there is no evidence that he has ever received a psychoses-related diagnosis. Service connection for certain identified chronic diseases, to include psychoses, may 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, psychoses include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), other specified schizophrenia spectrum or other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance-induced psychotic disorder; but not PTSD, depressive, anxiety, or panic disorders. 38 C.F.R. § 3.384. In this case, given that the Veteran has not been diagnosed with a psychosis at any point during period on appeal, service connection on a presumptive basis is unavailable. Additionally, although the Veteran has credibly reported excessive alcohol use during service, service connection for willful abuse of alcohol during service is unavailable. Moreover, the most probative medical evidence of record does not show a secondary link between in-service alcohol abuse and psychiatric symptoms. See 38 U.S.C. § 1110; 38 C.F.R. § 3.301; see also Allen, 237 F.3d at 1375. Finally, although the Veteran sincerely believes that his acquired psychiatric disability is related to service, his opinion in that regard is not competent. The Veteran is certainly competent to report observable symptoms (such as pain, for example) and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, 454 F.3d at 1331; Jandreau, 492 F.3d at 1372. In addition, lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of any acquired psychiatric disability falls outside the realm of common knowledge of a lay person, particularly in light of the lengthy time period between service and the Veteran’s initial psychiatric treatment. See Jandreau, 492 F.3d at 1377 n.4. The disease involves a complex internal process as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. Accordingly, the preponderance of the evidence shows that the Veteran’s acquired psychiatric disability, to include major depressive disorder, did not begin during service and is not otherwise related to service. Because the weight of the evidence is against a competent and probative medical nexus between the Veteran’s psychiatric disabilities and service, the preponderance of the evidence is against an essential element of the claim. The benefit of the doubt doctrine is therefore inapplicable and entitlement to service connection for an acquired psychiatric disability other than PTSD is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.