Citation Nr: 21030061 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-21 809 DATE: May 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder not otherwise specified, is denied. Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disorder, is denied. Entitlement to service connection for coronary artery disease (CAD), to include as secondary to an acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that depressive disorder not otherwise specified began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's headaches are not secondary to any service-connected disability and are not otherwise related to an in-service injury or disease. 3. The Veteran's CAD is not secondary to any service-connected disability, did not manifest within the applicable presumptive period, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder not otherwise specified, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for CAD due to service or any service-connected disease, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1965 to May 1967. The issues were most recently before the Board in November 2020 and remanded for additional development. Having been completed, the matters are ready for appellate disposition. SERVICE CONNECTION Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 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)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet .App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder The Veteran asserts that his depressive disorder, described as depression and temper problems, began in service. In a September 2020 statement, the Veteran contends that he became aggressive and started to drink "quite a bit," and had hallucinations, and that during basic training he struggled with depression and mood swings. He stated that upon return to civilian life, he continued to drink heavily, suffered from nightmares, and had trouble sleeping. He noted that he had friends who died while serving in Vietnam and that his grandfather died while he was serving on active duty, for which he was given emergency leave to attend the funeral. In support of his claim, he submitted lay statements from his spouse and his brother-in-law in October 2019, and the identical statements, typed, in September 2020. The Veteran's spouse stated that the Veteran was proud to be a soldier in the U.S. Army but when he returned home, he was "distant, negative, angry, anxious and had trouble sleeping...He also began having nightmares and would complain of having headaches and feeling sad." The Veteran's brother-in-law wrote that he has known the Veteran for 56 years and that when he returned home from the service he was "a different person, with anger, mood swings and sometimes bad temper...seemed to be depressed, and would cry about soldiers in combat getting killed." The brother-in-law related he heard the Veteran talk about suicide and "ways of ending his life." As an initial matter, the Veteran was diagnosed with depressive disorder, not otherwise specified (NOS) in May 2014. The Veteran's service treatment records (STR) contain no complaints of, or treatment for, any mental health issues. On his Separation Physical examination in April 1967, the Veteran checked 'no' for: depression or excessive worry; nervous trouble of any sort; and, excessive drinking habit. In his own words, he described his present health as, "Excellent." The Veteran's VA treatment records show that he underwent screenings for depression since 2009. In July 2009, the Veteran was referred for a mental health evaluation by his primary physician "for situational depression, stress due to losing his job and impending foreclosure on his house." Under chief complaint, the examiner reported that the Veteran "was depressed when father died in 2006 but denies depression at present." In the mental status examination (MSE) the Veteran denied depression, mood swings, audio or visual hallucinations, suicidal or homicidal ideations. His speech was described as clear, his eye contact as direct, and thoughts as coherent and linear. Under Axis I, the examiner noted that there was no diagnosis and reported, "pt has normal adjustment issues related to losing his job and impending foreclosure of his home." In September 2009, a treatment note reported that "a PHQ-2 [patient health questionnaire-2] screen for depression was performed. The score was 0 which is a negative screen for depression." In September 2010 the same screen for depression was performed, and the Veteran had a score of "2 which is a negative screen for depression." The first positive screen for depression was in a March 2014 treatment note, and the Veteran was referred to mental health in May 2014 by his physician. The physician asked that the Veteran be examined to "r/o [rule out] depression, r/o [rule out] PTSD." In May 2014, the Veteran was diagnosed with Depressive Disorder, not otherwise specified (NOS). Under Psychosocial History and Background, the Veteran reported "a primary complaint of being excessively emotional and tearful during the past 5 to 6 years, especially when remembering soldiers who died in military service. He described his level of depression as mild and noted feeling depressed part of the day, primarily when recalling those who have died. [He] reported no problems with sleep (sleeps approx. 8 hrs./night), endorsed good appetite, denied psychomotor retardation, denied feelings of worthlessness, denied excessive feelings of guilt, and denied suicidal ideation, [as well as] nightmares and avoidance behaviors. He reported having approximately one glass of wine with dinner once per month..." He further described his medical history of a heart attack which resulted in the loss of his job at a car dealership and the loss of his home to foreclosure. The examiner's clinical observations were reported as: "Veteran arrived on time for this evaluation and looked his stated age. He was casually dressed appropriate to age and SES. He was alert and well oriented to person, place, and time. Veteran was pleasant and cooperative throughout the interview. Speech was coherent with no indication of tangentiality, loosening or association or flight of ideas. There was no indication of a thought disorder, auditory or visual hallucinations, or psychotic ideations. Judgment appeared to be good. Memory was intact for recent and remote events. Mood was described as mildly depressed and affect was broad and consistent with mood. Veteran denied homicidal and suicidal ideations and intentions." The Veteran's attorney obtained a medical opinion regarding the Veteran's mental health and his military service from H.H-D, PhD in April 2019 and an addendum from her in August 2020. The private psychologist conducted a MSE in conjunction with a Mental Disorders Disability Benefits Questionnaire in April 2019. She provided a diagnosis of unspecified depressive disorder and noted the Veteran's CAD. She reported the Veteran's occupational and social impairment as with deficiencies in most areas. Under relevant mental health history, she noted that the Veteran did not take any medications for mental health or participate in group therapy but had an appointment to get a prescription with a psychiatrist. She reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks and near-continuous panic, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in relationships and difficulty adapting to stressful situations, suicidal ideation, persistent delusions or hallucinations, and intermittent inability to perform activities of daily living. She noted that the Veteran could manage his financial affairs as he "handles the household finances." The psychologist then provided a nexus statement wherein she stated, "[the Veteran] acknowledges his physical problems, including coronary artery disease, aggravate his pre-existing condition of depression which began in military service. It is the opinion of this expert that [the Veteran] suffers from unspecified depressive disorder more likely than not began in military service, continues uninterrupted to the present and prevents him from maintaining substantially gainful employment." In her August 2020 statement, the psychologist noted the lay evidence from the Veteran, his spouse and his brother-in-law, as well as "a body of literature detailing the emergency of mental health symptoms withing [sic] active duty servicemen" and that "research has shown the stress of a military environment leads to developing mental problems among servicemen and women." She revised her opinion, and concluded, "Based on the records, journaled psychological and medical research, and reports of the Veteran and his family, it is more likely than not the Veteran's depressive disorder more likely than not began in military service and has continued uninterrupted to present." As noted above, the Board sought an addendum opinion in this appeal. The Veteran was afforded a VA examination in December 2020. The examiner reported that the "Veteran has a DSM-V diagnosis of Unspecified Depressive Disorder." She opined that his unspecified depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For her rationale she noted that the April 1967 separation examination showed no mental health problems and evidence in the post-service treatment records indicated an initial diagnosis of depressive disorder in May 2014. She concluded that given the Veteran's history, medical record review, and examination findings, it is less likely than not the Unspecified Depressive Disorder was incurred in or caused by the Veteran's military service. She also addressed the private positive nexus opinion submitted by the Veteran. The VA examiner noted that the private psychologist relied only on the Veteran's lay statements indicating that he had difficulties with depression since his discharge from military service, and that he was drafted, for her rationale. The Board observes that a Record Review examination was also conducted in March 2021 regarding any pre-service mental health condition. It appears that the RO sought a secondary opinion regarding the Veteran's CAD and his acquired psychiatric disorder, however, the question was framed as to whether the current psychiatric disorder was as likely as not aggravated beyond its natural progression by service-connected psychiatric disability. The reviewer evidently believed he was to determine whether there was a pre-existing mental health condition prior to the Veteran's enlistment. The reviewer determined that no symptoms of unspecified depressive disorder were present at enlistment and noted that the VA treatment records did not describe any pre-service psychiatric syndromes. The reviewer concluded that the evidence showed that the Veteran's mental health symptoms arose either in-service or later. As the Veteran does not have a service-connected psychiatric disability, this opinion is of very little probative value. Based on the totality of the probative evidence of record, the Board finds that the elements for service connection for an acquired psychiatric disorder, claimed as depressive disorder NOS, are not met. In evaluating evidence, the Board is charged with the duty to assess the credibility and weight given to the evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had an inherent fact-finding ability. See also 38 C.F.R. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for its finding. Evans v. West, 12 Vet. App. 22, 30 (1998). As with all evidence, it is the responsibility of the Board to weigh conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another as long as it articulates understandable and valid reasons for doing so. Parrish v. Shinseki, 24 Vet. App. 391 (2011); Nieves-Rodriguez, 22 Vet. App. at 300; Boggs v. West, 11 Vet. App. 334, 344 (1998); Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the expert witness has applied the principles and methods reliably to the case. Specifically, the Board will determine whether the medical expert was aware of the critical medical facts in the Veteran's medical history and whether the medical expert provided the sort of factually accurate, fully articulated, and sound reasoning for the opinion that allows the Board to assess whether the medical expert applied valid medical analysis the facts of the particular case. Nieves-Rodriguez, 22 Vet. App. at 302. Here, the Board finds that the VA examiner's negative nexus opinion is more probative than the private psychologist's positive nexus opinion. Regarding the private psychologist's opinion, the Board notes that she gave no rationale for the lack of treatment, or diagnosis of, any mental health condition from May 1967 to May 2014, nor did she address the findings on the Separation Physical and lack of entries or treatment in the STRs. It appears that she based her opinion solely on the Veteran's lay evidence, along with his spouse's and brother-in-law's statements that he was depressed since his return from the service. However, when the Veteran was first examined for a mental health condition in July 2009, he denied any depression. Moreover, his depression screens were all negative until May 2014, and in the examination provided him then, he related "being excessively emotional and tearful during the past 5 to 6 years" which corresponds to the initial referral for depression due to his heart condition and subsequent loss of employment and home. These conflicting statements call into question the Veteran's credibility, as well as the credibility of his spouse and brother-in-law. The lay statements made in conjunction with the service connection claim are contrary to the contemporaneous evidence, which include the Veteran's own statements. Greater probative value is assigned to the contemporaneous reports made to medical professionals, as the statements were made by the Veteran and were noted by objective medical professionals in the process of providing professional care to the Veteran. The Board assigns less probative value to the statements from the Veteran, his spouse, and his brother-in-law, made in conjunction with the claim. Cartright v. Derwinski, 2 Vet. App. 24 (1991) (pecuniary interest may affect the credibility of a claimant's testimony); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Moreover, as these lay statements, which the Board has found to be of little probative value, formed the basis for the private psychologist's positive nexus opinion, the Board affords little probative weight to the private psychologist's opinion. Regarding the VA examiner's negative nexus opinion, the Board finds that it is highly probative as it presents the medical opinion of a competent expert, informed by review of the claims file, and presented with a persuasive discussion of the examiner's rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803 (7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Here, there are normal findings at separation and there is a gap of many decades in which the file contains no medical records of a diagnosis or treatment for any mental health condition. The Board notes that this absence of medical treatment records is also probative evidence against the claim. Mense, supra. The Board notes that the Veteran submitted articles and medical literature regarding military service and mental health. In this regard, the Board notes that treatise evidence must "not simply provide speculative generic statements not relevant to the Veteran's claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, the Board finds that the articles submitted amount to generic texts, which do not address the facts in this particular Veteran's own case with a sufficient degree of medical certainty, and thus do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). In sum, the Board finds the VA examiner's negative nexus opinion to be more probative in this determination than the private psychologist's opinion. The VA examiner engaged in a thorough objective evaluation, whereas the private psychologist seems to have parroted the Veteran's, his spouse's and his brother-in-law's lay statements without any objective assessment and without addressing the contrary evidence of record showing negative depression screening for several years prior to the May 2014 diagnosis of unspecified depressive disorder, as well as the Veteran's own statements provided to the mental health providers. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (If the preponderance of the evidence weighs against the claim, it must be denied.). 2. Entitlement to service connection for headaches, as secondary to an acquired psychiatric disorder The Board notes that the Veteran has only claimed service connection for his headaches secondary to his acquired psychiatric disorder, as seen in the opinion submitted by the Veteran by his private psychologist stating that, "the Veteran's depressive disorder more likely than not both cause and permanently aggravate his headaches." As the Board has found that service connection for an acquired psychiatric disorder is not warranted, secondary service connection is not for application. The Veteran does not contend, nor does the evidence of record support a finding, that his headaches were incurred in service. Notably, the Veteran's STR do not show any complaints of, or treatment for headaches and there is no competent evidence that the disability was related to his active military service. Thus, the elements for direct service connection are not met. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for headaches is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Alemany, supra. 3. Entitlement to service connection for CAD, to include as secondary to an acquired psychiatric disorder The Board notes that the Veteran has claimed service connection for his CAD secondary to his acquired psychiatric disorder, as seen in the opinion submitted by the Veteran from a private physician, Dr. H.S., stating that, "it is more likely than not the veteran's depressive disorder aided in the development of, and then continued to permanently aggravate his existing, hypertension and coronary artery disease." As the Board has found that service connection for an acquired psychiatric disorder is not warranted, secondary service connection is not for application. The Veteran does not contend, nor does the evidence of record support a finding, that his CAD was incurred in service. Notably, the Veteran's STR do not show any complaints of, or treatment for any heart condition and there is no competent evidence that the disability was related to his active military service. There is also no evidence that CAD was diagnosed within a year following the Veteran's discharge from service. The Board notes the Veteran served during the Vietnam Era; however, the Veteran did not have any foreign service and he does not claim such service in the Republic of Vietnam with exposure to herbicides. Thus, the elements for direct and presumptive service connection are not met. 38 C.F.R. §§ 3.303, 3.307, 3.309. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to secondary service connection for CAD is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Alemany, supra. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.