Citation Nr: 21030404 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-02 719 DATE: May 18, 2021 ORDER Service connection for an acquired psychiatric disability, to include unspecified depressive disorder (claimed as depression and adjustment disorder), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's diagnosed psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to March 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2015, the Veteran and her spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing and a transcript is of record. Initially, the Veteran characterized her claim as entitlement to service connection for depression and adjustment disorder. However, the claim cannot be "limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal has a long procedural history and has been before the Board previously. In January 2018, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) because the AOJ did not substantially comply with a prior May 2016 remand as it failed to obtain an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the January 2018 remand instructed the AOJ to schedule a new VA psychiatric examination and etiology opinion with a complete rationale. The appeal returned to the Board again in March 2019. Unfortunately, in May 2019, the Board was required to remand the appeal again because the AOJ did not substantially comply with the January 2018 remand. The May 2019 remand instructed the AOJ to schedule another VA medical opinion with a new VA examiner to assess the etiology of the Veteran's psychiatric disability, and expressly consider particular evidence summarized in the remand. The Veteran underwent a VA examination in December 2019. All of the evidence required to be considered was discussed individually. The etiology of the Veteran's current psychiatric disability was discussed, as was the history of her symptoms. The Board finds the RO substantially complied with the remand instructions and an additional remand is not required. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the Statement of the Case and most recent November 2020 Supplemental Statement of the Case (SSOC) and are not repeated here in full. The Veteran previously raised a duty to assist issue regarding this appeal, which resulted in the prior remand to remedy the insufficient examination. See December 2017 Representative's Informal Hearing Presentation. Since that time, she has not raised any specific duty to notify or duty to assist issues regarding this appeal, nor any arguments concerning the conduct of her Board Hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the Veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board will not discuss these duties any further. The Veteran contents that her acquired psychiatric disorder is related to her active service, specifically events she experienced in service, including racial discrimination. Although initially claimed as depression/adjustment disorder, the Veteran's claim has been broadened to include any diagnosed acquired psychiatric diagnoses. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. The Veteran's Representative alleges that the Veteran suffered a traumatic brain injury prior to her joining the military and that it was never properly treated. However, the Veteran's October 1978 entrance examination is absent of any notation of psychiatric or brain injury, defect, infirmity, or disorder. There is a notation on her entrance examination for the military to obtain a letter regarding a prior vehicle accident which resulted in a head and shoulder injury. That letter is of record, and states there was no apparent head injury. See October 1976 Private Treatment Record. A note from January 1979 indicates that the Veteran's examination was reviewed again, and she was found to be qualified. Therefore, the presumption of soundness attaches. The Board will adjudicate the appeal as one for direct service connection. 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 (Fed. Cir. 2004). In August 1979, the Veteran was seen for back pain, which the provider indicated was possibly connected to an automobile accident she was in prior to her military service. At this encounter, the Veteran was prescribed Valium and Tylenol #3. In September of that year, the Veteran complained of chest pain. She stated she was under stress from being written up for being absent without leave, and the provider indicated this was an acute anxiety reaction and noted the Valium prescription. It is important to note here that the Veteran's service record shows that she was not reported to be absent without leave until October 1979 and November 1979, and that the Valium was previously prescribed for a back injury, not for mental health symptoms. A separate visit in September indicated that the Veteran suffered from persistent back pain that required rest for relief, which would get her into trouble during the duty day with accusations of 'goofing off.' See August 1979, September 1979 Service Treatment Records. In an August 2009 VA telephone encounter, the Veteran reported symptoms of anxiety and depression, feeling as though her life had a 'lack of control.' Specifically, she reported the following symptoms of anxiety: being easily fatigued, difficulty concentrating or mind going blank, irritability, muscle tension and sleep disturbance. She reported the following symptoms of depression: depressed mood, appetite or weight disturbance, sleep disturbance, fatigue or loss of energy, and the diminished ability to think or concentrate/indecisiveness. The diagnostic impression was of anxiety and depression. At an initial mental health consultation, the Veteran reported experiencing emotional abuse and neglect growing up and that her six siblings experienced physical abuse. The Veteran reported that she served in the military for slightly more than one year, lost rank and received a General, under Honorable Conditions [discharge] due to being "charged with some trumped up drug charges" which she stated she did not commit. She reported no history of legal problems or alcohol or drug abuse since the military. She indicated that she was prescribed Zoloft in 2004 but did not believe she benefited from this medication. The Veteran reported some symptoms of depression since approximately 2004, less energy, low and sad mood, sleeping more during the day and waking during the night, being told she was more irritable, crying spells, difficulty concentrating, and decreased appetite. At this consultation, she was diagnosed with depressive disorder, NOS. See October 2009 VA Treatment Records. In an individual session progress note, the Veteran stated that her psychiatric problems began when she joined the Navy and had high expectations for her career. She reported that she did 'grunt work' and "carries papers on her person that show determination of her position to be, 'radio man,' to remind her that she never was involved in this type of work at all." She stated that her time in the military was the source of her self-esteem problems. See October 2009 VA Treatment Records. In January 2010, the Veteran had existing diagnoses of Dysthymic Disorder and Anxiety Disorder, NOS. During treatment, the Veteran expressed concern regarding taking Zoloft, an anti-depressant, in the past, as she felt dissociated or as if she was not in her own body, had crying spells, and had experienced significant psychomotor agitation. In one note, the provider indicated that the Veteran reported feeling apathetic about her problems, unmotivated, feeling sad and depressed, and lethargic. See January 2010 VA Treatment Records. In a February 2010 psychology assessment note, the Veteran was noted to present as emotionally labile in the session. The Veteran reported disappointment with her military career, stating that she did not end up in the occupation she anticipated. She reported that her career in the military was the sole source of her self-esteem problems; she was isolated, felt judged by others, unfulfilled, mistreated, and unsupported by family members. She later stated that she served in the military for a little over one year and received an honorable discharge after losing rank due to "trumped up drug charges," which she denied. The Veteran also reported feeling misunderstood and disappointed in her marital relationship at the time of the assessment. The Veteran reported that she had experienced emotional abuse and neglect as a child, but denied physical or sexual abuse, although her siblings experienced physical abuse. Her father abused alcohol. She also denied military sexual trauma. Her clinical profile suggested features of depression and hypomanic activation. She additionally reported difficulty concentrating, getting confused and forgetting what she wants to say, poor judgment, thinking about or dreaming about things that are too bad to verbalize, having strange and peculiar experiences, and having blank spells in which her activities were interrupted and she didn't know what was going on around her. She also reported experiencing hallucinations since she was a child. These reports led the clinician to indicate that the Veteran's cognitions suggested a psychotic process or long-term characterological condition. This provider diagnosed the Veteran with schizoaffective disorder, bipolar type. In March 2010, the Veteran was referred to a VA psychiatrist. She stated that she had depression for the previous 3 or 4 years. She served in the military for 1.5 years and became pregnant during the military service. She discussed that she was raised by both parents and was physically and emotionally abused. At this appointment, she did not discuss any mistreatment or self-esteem issues stemming from her time in the military. See March 2010 VA Treatment Evaluation Note. From December 2011 to December 2012, the Veteran met with a mental health provider for ongoing treatment for depression. The notes do not go into great detail; however, it is noted that the major sources of stress for the Veteran were interpersonal conflicts with her spouse and other family members. See December 2011 to December 2012 VA Treatment Records. In February 2012, the Veteran saw a VA primary care provider and stated that she felt depressed, although she was "not sure that makes her depressed and thinks that finding or pinpointing [the] exact cause and treating it may make her feel better." None of these records indicate that the Veteran attributes her depression to her military service. At her hearing, the Veteran testified that she intended to make a career out of her time in the military. At her first duty station, she was assigned to pick up cigarette butts and clear boulders. She stated that it was peculiar, because the people she was working with seemed to be in trouble but thought perhaps people were trying to see what she was made of. The Veteran also testified to being addressed as a Negro by the commander officer when she arrived in the base, however later stated, "Um, and actually saying it, I can't recall, it just made me feel, coming from then into now, it's like that's what was implied. That's what was made to make feel, you in my camp now" (sic). She testified that there were approximately six or seven African American sailors on the base with her. Her stress levels increased, and she began smoking up to two packs per day and drinking, although she had previously not smoked or drank. When asked if she spoke to anyone about what was happening, she testified that she spoke to her mother often, but there was no chaplain to speak to. She spoke of a particular incident where a visiting officer offered to speak with anyone; when she spoke to him, she was pulled to the side and told that she had duty that day so she was not able continue her conversation with the officer. She testified that she was accused of trafficking drugs and that her room was searched. She also stated that she lost rank due to the rumors about her being connected to drugs. The Veteran's spouse also testified at the hearing. They began dating before the Veteran joined the military and married shortly after she left the military. He testified that the Veteran changed, "like night and day," after her time in the military. See November 2015 Board Hearing Transcript. The Veteran underwent a VA examination in July 2016. Her diagnosis for unspecified depressive disorder was confirmed. The examiner indicated that the Veteran's mental condition had been formally diagnosed, but her symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. During the examination, the Veteran reported that her general discharge was due to racial harassment. She attributed her difficulties with depression and anxiety to these experiences. The examiner indicated that the Veteran received no mental health treatment while on active duty. The Veteran began treatment for depression and anxiety in 2009 and had last been seen by a metal health professional in 2014. She reported that she continued to have mild depression, anxiety, difficulty falling asleep, and disturbances of motivation and mood. The examiner opined that it was less likely than not that the Veteran's diagnosed psychiatric disorder began during, or was otherwise caused by, her active duty service. In October 2016, a separate VA examiner reviewed the electronic claims file, including the July 2016 VA examiner's report, and provided the following opinion: The Veteran was discharged from military service in 1980. There was no treatment for mental health issues while on active duty. Her first treatment on record for any mental health symptomatology was almost 30 years after her discharge. The Veteran claims her symptomatology is related to her military service but there is no supporting evidence to establish such a connection. In her examination report[the July 2016 VA examiner] stated: "After reviewing the records and interviewing the Veteran, it is the opinion of this evaluator that it is less likely as not that the veteran's diagnosed psychiatric disorder began during, or was otherwise caused by, her active duty service." There is nothing that this examiner has been able to find in the record that would indicate that [the July 2016 VA examiner]'s conclusions were inaccurate. There is no way for this examiner to establish any connection between her recent mental health symptomatology and her military service without resorting to speculation. The Veteran underwent a second VA examination in March 2018, and her diagnosis of unspecified depressive disorder was confirmed. The Veteran denied a history of trauma at the examination, but the examiner noted that her medical records indicate that she previously endorsed a history of emotional abuse, physical abuse, and neglect as a child. She became pregnant during her final year of service. She became defensive when asked to describe her marriage, eventually saying that things were 'good,' although her records indicated she had marital problems in the past. The Veteran had a sporadic work history, last working in 2012. The Veteran reported being racially discriminated against, based on being given "demeaning" jobs and having her room searched for drugs. She had a possession of marijuana offense but denied the charges and felt she had been set up. She did not have any mental health treatment and was vague about her mental health symptoms. She reported that she began drinking during her service to cope with the stress. The Veteran reported that she was prescribed an antidepressant from her primary care physician in 2004 but stopped taking it. She did not have mental health treatment again until 2009. The Veteran reported current symptoms of depressed mood, anxiety, chronic sleep impairment, irritability, and mood swings. During the examination, the Veteran denied pre-military use of substances or alcohol; however, the Veteran did require a drug-use waiver prior to enlisting in the military. See November 1978 Enlistment Contract. The examiner opined that the Veteran's unspecified depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated, "The Veteran's current diagnosis of Unspecified Depressive Disorder meets DSM criteria, but there is no evidence that it is related to the Veteran's military service. There is no report of mental health issues during the Veteran's service time and no consistent report of ongoing mental health problems since military service. The Veteran did not seek any mental health treatment until 25 years after her service, and her treatment did not involve any discussion of or treatment for symptoms associated with her military experiences. Therefore, there is no nexus between her military service and current symptoms." The examiner also stated that the Veteran alleged that she was discriminated against due to being given menial tasks and being unjustly accused of drug use during her military service, but could not provide any other examples or concrete evidence of being discriminated against or harassed. The Veteran's presentation, service records, and treatment records suggested to the examiner a pattern of interpersonal dysfunction typically associated with individuals who have a personality disorder and for that reason the examiner found her reliability as a historian questionable. The Veteran submitted a statement in May 2018 in which she described her time in secondary school prior to joining the military, her time in the military and after her time in the military. She stated that, upon arrival at her first duty station, she had been told her assignment there was to meet a quota of Black sailors, and rather than training to be a radioman, she was assigned to pick up cigarette butts and move rocks. She again reported being informed by a higher-ranking officer of his open-door policy, and when requesting some of his time to talk, she was placed on duty by her supervisor and threatened with being written up. To avoid further harassment, she stayed close to her quarters and kept to herself. The Veteran also wrote of a time when she was being followed by an unknown white man who stated he was part of a construction crew building an antenna. That night, the Veteran alleged she was, "approached by a NARC officer to partake in smoking marijuana was the straw that brought some understanding to what I had been experiencing. I snapped with an angry outburst, I had never did drugs and didn't take kindly to his rhyme or reasoning in coming to me in such a dishonoring way" (sic). She additionally explains that her two Non-Judicial Punishments, one for being absent without leave and one for possession of marijuana, coincided with the times she traveled away from the post environment to get a break and did not have reliable transportation back, implying that these Non-Judicial Punishments were her punishment for being late returning to her duty station. The Veteran stated that she received code RE4 when she was discharged and alleged that it referred to homosexual misconduct. She included diagnoses of major depression, moderate panic disorder with agoraphobia, bipolar II disorder and PTSD, received from M.P., Psy.D. See May 2018 Veteran's Statement in Support of Claim. However, medical records to support these diagnoses are not of record. Code RE4 means the service member is not recommended for reenlistment. However, the reason for the Veteran's separation was clearly identified on her DD214 as pregnancy. https://militarybenefits.info/reenlistment-re-codes/ During continuing mental health treatment in 2019, the Veteran continued to discuss her military career. In February, she stated that she never had any training and that her job was radioman. There was an increase in stress and worry in June due to her spouse's health. At the end of 2019, the Veteran's treatment records continue to confirm a diagnosis for depression. See November 2019 VA Treatment Records. The Veteran underwent another VA examination in December 2019. At this examination, the Veteran described her childhood as 'great' and denied any childhood trauma. She stated that she last worked in 2005. She reported being informed that she would serve in the military as a radioman, but generally worked in maintenance, stating she went through hell while in the service. She reported receiving two non-judicial punishments for returning late from leave and that she separated from the military due to pregnancy. The Veteran reported first receiving mental health services in 2004 or 2005. She reported last taking medications in 2011 or 2012 because she did not like how the medications made her feel. She reported her current symptoms were depressed mood; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner opined that the Veteran's diagnosis of unspecified depressive disorder less likely as not began during or was otherwise caused by military service. The Veteran reported the onset of mental health well after separation from service, while struggling with the stress of raising her children and managing her husband's deployments. VA treatment records support this. Additionally, the Veteran's presentation at the time of the examination was consistent with previous assessments. See December 2019 VA Examination. A more detailed rationale was requested. The examiner stated: The current request for an opinion references a notation in the September 1979 service treatment record that documents in-service complaints of chest pain and stress in the context of stress from disciplinary issues. This appeared to be an acute stress reaction with anxiety and there's little evidence to suggest that her recurrent depressive episodes beginning in 2004 are related to that incident. She appears to have chronic issues in relationships with associated depression as well as mood swings possibly indicating a bipolar disorder. She was not formally diagnosed with a mood disorder while on active duty and her situational symptoms at that time cannot be considered to constitute the basis of early symptoms of her mood disorder with any degree of medical certainty. Given the fact that she did not become significantly symptomatic for many years after her discharge to the point where she sought treatment, and given the fact that she references most of her current mental distress to either situational or relationship issues or free floating symptoms without any reference to her military experience is as causative, it is less likely than not that the stress-related anxiety symptoms noted in the Service Medical record are related to the current mental health symptoms and it is less likely than not that her current mental health symptoms were caused by or began during her period of active military service. See November 2020 Medical Opinion. The Veteran submitted a statement in December 2020. She stated that she completed boot camp requirements and became a radioman, but never received on the job training to become useful. Instead, she was assigned to pick up cigarette butts. The Veteran asserts that the harassment she suffered began after she requested to meet with a visiting officer. The Veteran saw that her military records defined her as being a marginal performer, slow and unreliable. Since that time, the Veteran states that she has been self-medicating with alcohol, prescriptions, and over the counter drugs to relieve the mental stress of daily routines. The Veteran's spouse also submitted a statement in December 2020, in which he stated that he heard the distress in the Veteran's voice during phone calls of the treatment she was receiving during her time in the military and witnessed her difficult transition back to civilian life during her pregnancy. Additionally, he noted her increased alcohol consumption and mood swings. The Veteran's child wrote in a December 2020 statement that she witnessed her mother's sense of worry and stress, taking on more of a motherly role as she became an adult. The child noticed over time how the Veteran started self-medicating to cope with struggles. VA treatment records show the Veteran was not diagnosed with depression until August 2009, approximately 30 years after her separation from service. The Veteran is competent to report having experienced symptoms of a depressed mood, sleep impairment, and lack of concentration or motivation intermittently or consistently since service, and her family are competent to report what they observed. However, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an acquired psychiatric disorder. The issue is medically complex, as it requires interpretation and application of the Diagnostic and Statistical Manual of Mental Disorders, as well as knowledge of other possible medical causes for a psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board concludes that, while the Veteran has a current diagnosis of an acquired psychiatric disorder, to include unspecified depressive disorder, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of an acquired psychiatric disorder, to include unspecified depressive disorder, began during service or is otherwise related to an in-service injury, event, or disease. The July 2016 and October 2016 opinions are inadequate for the reasons stated in the January 2018 Board remand. Therefore, they have no probative weight for or against the claim. The March 2018 opinion is inadequate for the reasons stated in the June 2019 Board remand. Therefore, it has no probative weight for or against the claim. However, taken together, the December 2019 opinion by a psychologist and November 2020 opinion by a psychiatrist conclusively and unequivocally establish that the Veteran's acquired psychiatric disorder is not at least as likely as not related to an in-service injury, event, or disease, including any alleged racial discrimination or harassment. The December 2019 and November 2020 opinions, by two VA examiners, ultimately resulted in the opinion that the Veteran's acquired psychiatric disability is not at least as likely as not related to an in-service injury, event, or disease, including the acute stress reaction or harassment. The rationale was that the Veteran's September 1979 service treatment record documents in-service complaints of chest pain and stress in the context of stress from disciplinary issues. This appeared to be an acute stress reaction with anxiety and there's little evidence to suggest that her recurrent depressive episodes beginning in 2004 are related to that incident. Additionally, given the fact that she did not become significantly symptomatic for many years after her discharge to the point where she sought treatment, and given the fact that she references most of her current mental distress to either situational or relationship issues or free floating symptoms without any reference to her military experience is as causative, it is less likely than not that the stress-related anxiety symptoms noted in the service medical record are related to the current mental health symptoms and it is less likely than not that her current mental health symptoms were caused by or began during her period of active military service. The examiners' opinions are probative, because they were based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran consistently reported her earliest symptoms as 2004, well after leaving active service. Although in her 2009 treatment notes, the Veteran indicated that her psychiatric problems began in service, the Veteran is an inconsistent historian. In February and March 2010, the Veteran reported that she was the victim of childhood physical and emotional abuse and neglect, but denied any childhood trauma in her 2018 and 2019 VA examinations, stating in her 2019 VA examination that her childhood was great. She stated in her December 2020 letter that the harassment she alleges started after she requested to meet with a visiting officer; however, at her November 2015 hearing, the Veteran seemed to indicate that the harassment began as soon as she arrived at her duty station, as she was assigned menial tasks and called a degrading term. The Veteran also stated in her December 2020 letter that she had completed her training to become a radioman, while other records indicated that she was a seaman apprentice with a desire to become a radioman. See DD214; October 2009 VA Treatment Records; February 2010 VA Treatment Records. These inconsistencies as to her service experiences, the reasons surrounding her discharge, and her post-service mental health history render her statements less persuasive. Regardless, the VA examiners considered her statements and the in-service acute anxiety reaction yet still ultimately reached a negative conclusion about the relationship between her psychiatric condition and her military service. The 2020 VA examiner indicated that the Veteran's situational symptoms during service "cannot be considered to constitute the basis of early symptoms of her mood disorder with any degree of medical certainty." There are no medical opinions to the contrary. In light of the above analysis, the Board finds the preponderance of the evidence is against finding that the Veteran's diagnosed psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Parker N. Reynolds, 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.