Citation Nr: 21027790 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-42 331 DATE: May 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition other than PTSD, to include as secondary to seizure disorder, is remanded. FINDING OF FACT The most competent, probative evidence of record indicates that a psychiatric condition (other than his service-connected PTSD) was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric condition other than PTSD, to include as secondary to claimed seizure disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1981 to July 1983, December 1990 to May 1991, and March 2003 to March 2005 with additional periods of reserve service. This matter is before the Board of Veterans' Appeal (Board) on appeal from a July 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that jurisdiction currently rests with the Phoenix, Arizona RO. In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that three additional issues on appeal are awaiting a hearing and will not, therefore, be addressed at this time. Entitlement to service connection for an acquired psychiatric condition other than PTSD, to include as secondary to seizure disorder, is denied. The Veteran contends that he has an acquired psychiatric condition other than his already service-connected PTSD that is secondary to his service-connected seizure disorder. Specifically, he asserted at his May 2016 hearing before the Board that his, "epilepsy and depression are linked" and asserted, via his representative that, "the blunt force injuries that occurred to his head can be a leading contributor to the depression that Mr. [REDACTED] suffers with today". As an initial matter, the Board notes that the United States Court of Appeals for Veterans Claims (the Court) has indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Based on the record, the Board has recharacterized the Veteran's claim pursuant to Clemmons, as one for entitlement to service connection for an acquired psychiatric condition other than PTSD, to include as secondary to seizure disorder. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In addition to the criteria for service connection outlined above, secondary service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Further, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. Notwithstanding the foregoing, a claimant is not precluded from establishing service connection for a disease claimed to be related a service condition on a secondary basis, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regarding this case, it is initially noted that because the Veteran has not raised, and the record does not reasonably raise the issue of entitlement to service connection on a direct basis, the Board's adjudication will consider only entitlement to service connection on a secondary basis. The question for the Board is therefore whether the Veteran has an acquired psychiatric condition other than PTSD that is proximately due to or the result of, or that is aggravated beyond a natural progression by his service-connected seizure disorder. Here, it is not at contention that the Veteran has been diagnosed with depression. It is also undisputed that the Veteran is service connected for seizure disorder. However, the Board concludes after a thorough review of the claims file that while the evidence of record shows the Veteran has a diagnosis of an acquired psychiatric condition and is service-connected for seizure disorder, the preponderance of the evidence weighs against finding that there is a nexus between the two. The Board previously noted in its June 2018 Remand that the Veteran's April 2015 PTSD VA examination did not identify any psychiatric disorders other than PTSD, but the Board noted that the Veteran private treatment records did indicate a diagnosis of depression. The Board then remanded this claim in order to obtain clarification as to whether the Veteran has a separate diagnosis for any psychiatric disorder other than PTSD, to include depression. Following an in-person examination and review of the claims file that took place in adherence with the June 2018 Board remand, a VA examiner opined in a March 2020 opinion that the Veteran indeed has a separate diagnosis of "Major Depressive Disorder, Moderate, Recurrent episode" in addition to PTSD. In August of 2020 a VA examiner again found that the Veteran "has a separate diagnosis of MDD in addition to PTSD." It was determined that it is possible to differentiate which symptoms are attributable to each diagnosis. However, it was noted that "Claimant's PTSD is related to a near plane crash. MDD is primarily related to family stressors. There is some overlap in symptoms, including irritability and loss of interest in things." The examiner also opined that, "Claimant's depression is considered to be due primarily to family stressors. He denied any impact of seizures or head injuries as contributing factors to depression, which is in concert with his previous evaluation by this provider in March 2020. Claimant reiterated that his son's incarceration and recent martial problems are the biggest contributing factors to his depression. He has not sustained a seizure in several years and feels these are well managed by medication. Therefore, claimant's depression is considered less likely than not due to a seizure disorder." Similarly, it was provided in regard to aggravation that the Veteran "denied any association between these conditions and depression in both the current and his previous evaluation" and "there is no evidence by report or provided records to indicate a clear link between these medical conditions and ongoing depression, which is considered to be due to family stressors" and therefore, his "depression is considered less likely than not to be aggravated by seizure disorder, head injuries, or PTSD." The Board affords great probative weight to the August 2020 VA examiner's opinion because it is supported by appropriate rationale that provides insight into the medical aspects of the possible relationship between acquired psychiatric conditions such as depression and seizure disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). The examiner clearly explained that the Veteran's acquired psychiatric disability other than PTSD, as reflected in the medical treatment records, manifested subsequent to factors unrelated to the Veteran's military service, to specifically include his family problems. Significantly, there are no contrary medical opinions of record that would support the Veteran's contentions that any acquired psychiatric disability other than PTSD was caused or aggravated by his service-connected seizure disorder. In that regard, the Board acknowledges the May 2016 notation by a private examiner noting that, "His complaints and variability throughout the [neurocognitive] profile are possibly influenced by his reported symptoms of depression and anxiety, although his mood symptoms have improved based on the record. Notably, he endorsed a similar level of depression, increased withdrawal, and an increase in anxiety on a lengthy measure of emotional functioning in comparison to his responses on the same measure in 2015." In contrast with supporting the Veteran's contentions, this opinion seems to suggest that the Veteran's seizure disorder was "possibly influenced by his reported symptoms of depression and anxiety" and not the other way around. This directly conflicts the assertion made by the Veteran that he has an acquired psychiatric disability other than PTSD that was caused or aggravated by his service-connected seizure disorder. Further, the Board reiterates that the Veteran himself has indicated on multiple occasions as outlined above that his acquired psychiatric disability other than PTSD is not related to his seizures. The weight of the evidence does not indicate that service connection is warranted. In addition, the Board notes that the Veteran is competent to report on matters observed within his respective personal knowledge, such as feelings of depression. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to possess the specialized knowledge and training necessary to render an opinion as to the nature and etiology of any acquired psychiatric disability other than PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of the Veteran's psychiatric condition is not a matter capable of lay observation and requires medical expertise to determine. The Board does not doubt that the Veteran has an acquired psychiatric disability other than PTSD. However, the competent, probative evidence of record indicates that this psychiatric condition is not related to service-connected seizure disorder nor is it otherwise related to his military service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.