Citation Nr: 21026743 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-49 352 DATE: May 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder with anxious and depressive features, also claimed as mental stress illness, is denied. FINDING OF FACT 1. The Veteran does not have a diagnosis of PTSD. 2. The Veteran does not have a psychiatric disorder that is causally or etiologically related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, mood disorder with anxious and depressive features, also claimed as mental stress illness, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1972 to August 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated in June 2013. The Veteran appeared before the undersigned Veterans Law Judge in a March 2019 videoconference hearing. A transcript of that proceeding is associated with the claims file. In January 2020, the Board remanded this claim to obtain VA and private treatment records and a medical opinion. The VA records were obtained, as was an adequate medical opinion, discussed in more detail below. In January 2020, the RO asked the Veteran to complete releases so VA could request his private treatment records. He did not respond. Therefore, to the extent the evidence of record is incomplete, that is a direct result of his failure to cooperate with VA's efforts to develop his claim. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149(2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Neither the Veteran nor the Veteran's representative has raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, or with the conduct of the Veteran's Board hearing, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, mood disorder with anxious and depressive features, also claimed as mental stress illness. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). Service connection for posttraumatic stress disorder, in part, requires medical evidence diagnosing the condition in accordance with § 4.125(a). The Veteran does not have a valid diagnosis of PTSD. See November 2015 VA treatment record (noting a diagnosis of unspecified depressive disorder and Etoh use); May 2013 VA examination (diagnoses of mood disorder NOS with anxious and depressive features, alcohol abuse, and cognitive disorder NOS); March 2016 VA examination (noting Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria); March 2020 VA opinion (concluding the Veteran's medical records do not support a diagnosis of PTSD). To the extent his VA treatment records reflect assessment of "pos" PTSD, it is not clear whether this means "possible" or "positive", but, regardless, those references are not persuasive evidence since they were made by a primary care doctor, not a mental health professional, without any meaningful analysis as to how the criteria for such a diagnosis were met (he merely indicated he had reviewed screening questions so referred the Veteran to mental health), so the conclusions of the mental health professionals between 2013 and 2020 that the Veteran does not have PTSD far outweigh these notations. As the Veteran does not have a current diagnosis of PTSD, the Veteran's claim for entitlement to service connection for PTSD is denied. Brammer, supra. The Veteran does have various other psychiatric diagnoses, to include mood disorder NOS with anxious and depressive features, alcohol abuse, cognitive disorder NOS, and unspecified depressive disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition, service connection may also be established on a presumptive basis for certain "chronic diseases" listed in 38 C.F.R. § 3.309(a) where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.307; see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Those provisions do not apply in this case because the Veteran's diagnosed acquired psychiatric disorders are not chronic diseases for purposes of 38 C.F.R. § 3.309(a), and the medical evidence does not show that the Veteran has a diagnosed psychosis for purposes of 38 C.F.R. § 3.384 that would otherwise implicate the chronic disease provisions. The Board finds the most probative evidence of record regarding the etiology of the Veteran's psychiatric conditions are the May 2013 and March 2016 VA examinations and the March 2020 addendum opinion. In May 2013, the VA examiner opined that the Veteran's diagnosed mood disorder NOS with anxious and depressive features; alcohol abuse; and cognitive disorder NOS were less likely than not incurred during or caused by active service. The examiner's rationale was that the Veteran had subsequently worked as a locomotive mechanic for 39 years without significant job-related problems. He noted the Veteran reported no ongoing mental health treatment throughout his military career, which ended with a general discharge under honorable conditions as an E-1. In approximately 2005, around three decades after discharge, the Veteran admits to becoming increasingly depressed. The examiner notes that during that time, there were various financial, family, and job-related problems and the Veteran was treated as an inpatient at Porter Hospital. He may have received electroconvulsive therapy (ECT) in addition to treatment with psychotropic medications. Since at least that time, the Veteran has continued to take antidepressant medication prescribed by his primary physician as he is not currently in counseling. In March 2016, the VA examiner opined that although the Veteran did not have a post-traumatic stress disorder (PTSD) diagnosis, he did have situational depression (diagnosed during the exam as unspecified depressive disorder). However, his claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale was that the Veteran dealt with situational depression that based on the Veteran's own report, "passes." He previously admitted he had been hospitalized prior to enlisting, and the examiner notes he was likely depressed while in the military, through his court martial, and his eventual discharge. However, his past depressive episodes were likely resolved until the next situational depression occurred. A review of the record reveals the Veteran's most recent situational depression episode was likely related to his poor health since 2011 when the Veteran had a heart attack and has been dependent on an oxygen tank. Therefore, his current diagnosis of Unspecified Depressive Disorder is less likely related to his military service. Pursuant to Board remand directives, in March 2020, the same examiner issued an addendum opinion stating based on the documents reviewed, it was less likely than not that the Veteran's depression was related to his military service. As shown in his service treatment records (STRs), the Veteran was not diagnosed for depression or anxiety and his condition pursuant to his military records, the Veteran was characterized as having marginal performance and increasing aggressive behavior in his Article 15, although no evidence of psychosis or neurosis or other disorders to qualify him for disposition through medical channels. As such, he was diagnosed with a character and behavior disorder as indicated in an August 1973 letter. Further, the examiner opined that it was less likely than not that the Veteran's currently diagnosed mental disorder was a direct result of the harassment the Veteran reportedly experienced while on active duty. The examiner noted as rationale that the Veteran's most recent mental health records indicated that his diagnosis of depression was related to more recent non-military stressors, like his medical problems. The examiner's March 2016 and March 2020 opinions are entitled to significant probative weight because they are based on a thorough review of the Veteran's medical history and a clinical interview and provide an explanation that contains clear conclusions supported by a reasoned rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes the evidence of record also includes a May 2013 VA psychiatric examination which the Board finds is entitled limited probative weight as the examiner did not have access to the Veteran's private treatment records and did not discuss the in-service performance and behavior issues. The Veteran's representative argues the 2016 and 2020 VA opinions are inadequate. Although the 2016 opinion indicated the Veteran was likely depressed during service, this was not a positive opinion as to service connection when the report/opinions are read holistically. The examiner ultimately reached a negative opinion, finding the Veteran experiences situational depression that passes and the post-service depression is related to post-service events. In other words, he did not have a chronic psychiatric condition during service, but experienced depression coincident with his military disciplinary procedures/discharge, which then resolved, and which was then not related to the condition shown three decades later. As for the examiner's conclusion that the in-service issues were consistent with a personality disorder, the fact the Veteran does not have a currently diagnosed personality disorder is irrelevant since the examiner's opinion was based on the facts of a 1973 diagnosis of a character and behavior disorder. That diagnosis was clearly shown in 1973, so the VA examiner was simply stating those were the facts shown during service. The examiner did not fail to state whether the in-service behavioral issues were related to depression, but quite clearly stated they were not, that no depression was diagnosed during service during the contemporaneous mental health evaluations, and that his behavior was found to be consistent with a character and behavior disorder. The representative argues that, as a whole, these conclusions are inadequate because the Veteran does not have a current diagnosis of a personality disorder, and also argues that the Veteran's situational depression could be explained by a diagnosis of recurrent major depression. However, the representative is not shown to have medical training, so while he may disagree with the VA examiner's conclusions in his role as an advocate, his opinion is not competent evidence, especially where the VA examiner discussed all the evidence and based the opinions reached on the correct facts. The VA opinions do not represent a "post hoc attempt to explain away the behavioral problems during service," but, rather, it was actually a contemporaneous service mental health evaluation in 1973 that found the Veteran's diagnosis was a character and behavior disorder. The Board considered the Veteran's lay statements. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a mental disorder. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, given the inconsistencies in his own statements/reports, the Board does not find the Veteran's lay statements asserting that denial of treatment and/or harassment by his superior during active service led to his mental disorder to be credible. Even accepting as true his allegations of the in-service actions by his superior officer, and that he experienced mental health symptoms while going through the service discharge procedures, the VA examiner quite clearly opined those symptoms were situational and not related to the mental health symptoms the Veteran experienced three decades after service, which the examiner stated are related to post-service situations. The VA examiner also quite clearly considered the Veteran's performance and behavior issues during service, yet found there was no evidence of psychosis or neurosis or other disorders. The Veteran is competent to report the service incidents and how he felt at the time; however, he is not competent to opine those incidents led to the mental health diagnosis/symptoms he had decades after service. The VA examiner's opinions far outweigh the Veteran's statements on this point. The preponderance of the evidence weighs against finding the Veteran's acquired psychiatric disorders began during active service or are otherwise related to an in-service injury, event, or disease. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mireya Martinez 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.