Citation Nr: 21039946 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 20-23 862 DATE: July 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include unspecified depressive disorder with anxious distress, a mood disorder, and polysubstance dependence, is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired 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 have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the US Marine Corps from October 1971 to November 1974. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Board remanded the Veteran's claim for additional development. Applicable Law and Regulations Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 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) an 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Effective August 4, 2014, the VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V). 38 C.F.R. § 4.125. The DSM-IV is applicable to claims that were initially certified for appeal to the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit prior to August 4, 2014. The Board notes that the present claim was certified to the Board in May 2020. Accordingly, this claim was pending before the Agency of Original Jurisdiction (AOJ) after August 4, 2014, and DSM-V applies to this claim. 79 Fed. Reg. 45094 (Aug. 4, 2014). Factual Background In September 1971, the Veteran's service treatment records showed a normal clinical evaluation. He denied frequent trouble sleeping, depression or excessive worry, loss of memory, or nervous trouble of any sort. A January 1973 court martial summary indicated the following behavioral issues in service: a period from December 24, 1972 to December 27, 1972, where the Veteran was absent without leave (AWOL); a failure to be at his appointed place of duty; a failure to go to a company inspection January 18, 1973; disrespect toward Sargent [REDACTED]; and disobeying a lawful from Sargent [REDACTED] to stay out of the squad bay. He was found guilty of all charges and sentenced to hard labor for 30 days and a $204 forfeiture. In August 1973, his military personnel records showed a recommendation for undesirable discharge by reason of unfitness. He was awaiting trial by general court martial for assault and possession of a knife with a blade over three inches long. He was confined from May 11, 1973 to August 21, 1973. However, the charges were dropped due to lack of a speedy trial. His service treatment records are silent for symptoms or a diagnosis of an acquired psychiatric disorder. In November 1974, his service treatment records show a normal clinical evaluation. In November 1984, C.B., L.H., and C.N. provided buddy statements. C.B., the Veteran's neighbor and teacher, opined he was a hardworking and reliable person. His sense of humor put him in good standing with old friends and new. L.H., the Veteran's friend, opined he was a professional person. He liked to complete any task he set for himself. C.N., the Veteran's friend, opined he conducted himself in a positive manner always upholding the moral as well as civil responsibilities. In November 1984, S.S., the Veteran's manager at [REDACTED] Health Services, opined he was a hard worker capable of following instructions as well as carrying out functions with knowledge and professionalism. The Veteran's June 2000 VA treatment records show a diagnosis of substance abuse. He reported suicidal ideation over three years ago due to drug use, unemployment, and poor family relationships. He completed a rehabilitation program. In September 2008, the Veteran was admitted Red Rock Medical Center for suicidal ideation. From October 1, 2008 to October 7, 2008, he was admitted for stress, anxiety, depression from being homeless and inability to provide, and suicidal thoughts. He reported hearing command hallucinations. He also reported a previous diagnosis of PTSD. At the time of his discharge, he was diagnosed with major depression, single episode with psychotic features and polysubstance dependence. By December 2014, his VA treatment records showed a diagnosis of major depressive disorder and a mood disorder. The Veteran complained of PTSD, depression, and other issues in May 2018. However, his doctors assessed major depressive disorder under the DSM-V. In July 2018, the Veteran underwent a private mental health assessment. He reported the following symptoms: feeling anxious and uncomfortable, an excessive fear or worry, a depressed/sad mood, low self-esteem, few friends, and unresolved grief. He grew up with a strict father. As a child his family home was vandalized. He believed the vandals were motivated by racism. In service, he developed a drug abuse problem. He reported a diagnosed of PTSD by the VA. Additionally, in 2017, his wife died in his arms and his oldest son blamed him for her death. Based on the Veteran's report, the examiner diagnosed him with PTSD and major depressive disorder. An April 2021 VA examiner opined the Veteran had a current diagnosis of unspecified depressive disorder with anxious distress. He did not meet the DSM-V criteria for PTSD. The Veteran reported growing up in a strict household. His father was a pastor. He married in service and divorced after seven years. His second wife died of natural causes in 2017. Currently, he lived alone but cared for his ex-girlfriend's 10-year-old son. He was disciplined in service for stealing, disrespecting officers, and going AWOL. He last worked in 1987 as a corrections officer. He was fired after it was found he brought drugs into the jail. The Veteran indicated periodically receiving mental health treatment since 2008. During the examination, he reported the following symptoms: a depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, and suicidal ideation. He was observed to have attention within normal limits, adequate hygiene, good eye contact, speech within normal limits, an intact memory, and coherent thought process. He was agitated but cooperative, had a dysphoric affect and mood, poor insight, and poor judgment. The April 2021 VA examiner opined it was less likely than not that this condition was incurred in or attributable to his military service. There were no records showing mental health symptoms in service. He had a long history of drug abuse after service and started receiving mental health treatment in about 2008. He currently met the DSM-V criteria for unspecified depressive disorder with anxious distress. All his symptoms fell under the depressive disorder diagnosis. He was not diagnosed with PTSD. Additionally, it was less likely than not that this condition was aggravated by his military service. The record does not reflect that the Veteran had mental health symptoms prior to his active service. Analysis The Veteran contends that his acquired psychiatric disorder is due to his active service. As the record shows current a diagnosis of unspecified depressive disorder with anxious distress, a mood disorder, and polysubstance dependence, the first element of service connection is satisfied. In April 2021, the Veteran reported disciplinary actions in service for stealing, disrespecting an officer, and going AWOL. A January 1973 court martial summary indicated the following behavioral issues in service: the Veteran went AWOL from December 24, 1972 to December 27, 1972, failed to be at his appointed place of duty, failed to go to a company inspection January 18, 1973, disrespected Sargent [REDACTED], and disobeyed a lawful from Sargent [REDACTED] to stay out of the squad bay. He was found guilty of all charges and sentenced to hard labor for 30 days and a $204 forfeiture. In August 1973, his military personnel records showed a recommendation for undesirable discharge by reason of unfitness. He was awaiting trial by general court martial for assault and possession of a knife with a blade over three inches long. He was confined from May 11, 1973 to August 21, 1973. However, the charges were dropped due to lack of a speedy trail. Giving the Veteran every benefit of the doubt, the undersigned finds he sustained an in-service injury. However, there is no causal relationship between the Veteran's acquired psychiatric disorder and his active service. The Board acknowledges the Veteran's assertion that his acquired psychiatric disorder was related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's acquired psychiatric disorder was related to service, the Board finds that evidence was not competent as the Veteran was not shown to have the required training to diagnose the disability and opine as to its' etiology In November 1984, C.B., L.H., C.N., and S.S. provided buddy statements. C.B. opined the Veteran was a hardworking and reliable person. His sense of humor put him in good standing with old friends and new. L.H. opined he was a professional person. He liked to complete any task he set for himself. C.N. opined the Veteran conducted himself in a positive manner always upholding the moral as well as civil responsibilities. S.S. opined he was a hard worker capable of following instructions as well as carrying out functions with knowledge and professionalism. C.B., L.H., C.N., and S.S. competent and credible to report their observations and conversations with the Veteran. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, these buddy statements were found probative. In July 2018, the Veteran underwent a private mental health assessment. He reported the following symptoms: feeling anxious and uncomfortable, an excessive fear or worry, a depressed/sad mood, low self-esteem, few friends, and unresolved grief. Based on the Veteran's statements, the examiner diagnosed him with PTSD and major depressive disorder. The Board remanded the Veteran's claim in March 2021. The private mental health assessment largely reflected the Veteran's subjective reports and was unsigned by the provider. However, the 2018 report did suggest that he had an acquired psychiatric disorder and therefore was assessed to be of limited probative value. The claim was remanded for a VA examination and nexus opinion under McLendon v. Nicholson, 20 Vet. App. 79 (2006). In an April 2021 VA examination, the Veteran was diagnosed with an unspecified depressive disorder with anxious distress. He did not meet the DSM-V criteria for PTSD. The Veteran reported growing up in a strict household. He was disciplined in service for stealing, disrespecting officers, and going AWOL. He indicated periodic mental health treatment since 2008. Currently, he lived alone but cared for his ex-girlfriend's 10-year-old son. During the examination, he reported the following symptoms: a depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, and suicidal ideation. He was observed to have attention within normal limits, adequate hygiene, good eye contact, speech within normal limits, an intact memory, and coherent thought process. He was agitated but cooperative, had a dysphoric affect and mood, poor insight, and poor judgment. The April 2021 VA examiner opined it was less likely than not that this condition was incurred in or attributable to his military service. There were no records showing mental health symptoms in service. He had a long history of drug abuse after service and started receiving mental health treatment in about 2008. He currently met the DSM-V criteria for unspecified depressive disorder with anxious distress. All his symptoms fell under the depressive disorder diagnosis. He was not diagnosed with PTSD. The VA opinion was highly probative evidence, as it relied on sufficient facts and data, and provided a rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, the probative evidence weighed against finding the Veteran's acquired psychiatric disorder was related to service. Based on the evidence of record, the Board finds that the third element of Shedden is not met. Consequently, entitlement to service connection for an acquired psychiatric disorder is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.