Citation Nr: 21040168
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 12-33 735A
DATE: July 2, 2021

ORDER

Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) is denied.

FINDING OF FACT

The preponderance of the evidence is against finding that a psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) began during active service or is otherwise related to an in-service injury or disease, including secondary to the Veteran's service-connected left knee disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD), including secondary to the Veteran's service-connected left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 30310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1982 to June 1986 and from March 1987 to February 1992, to include verified service in the Southwest Asia theater of operations from September 1990 to April 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

In August 2016, the Veteran testified at a hearing before the Board; however, a transcript from the August 2016 hearing is unavailable because of a recording equipment malfunction. In a May 2017 hearing, the Veteran testified before the undersigned Veterans Law Judge, and a copy of that transcript is of record.

In January 2018, the Board remanded the matter for more development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998).

Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision beyond the secondary service connection issues raised above. 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). 

The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 

Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD)

The Veteran is claiming entitlement to service connection for a psychiatric disorder, to include PTSD and major depressive disorder. The Veteran stated that he saw a friend killed and he was frustrated and depressed that he did not get benefits for PTSD. See August 2012 Statement in Support. In January 2019, VA sent the Veteran a letter to request specific details of his reported stressor, but the Veteran failed to respond.

Mental Health Treatment

The Veteran's service treatments were absent of any complaints, treatment or diagnosed mental health conditions.

The Veteran's post-service treatment records reflect treatment for a mood disorder, personality disorder, major depressive disorder, and a diagnosis of PTSD (based solely on the Veteran's self-reported symptoms). See December 2019 treatment note.

In August 2012, the Veteran submitted several lay statements. EF reported that since 1999 the Veteran had difficulty breathing, and migraine headaches. The Veteran's second child stated his father was on edge, and in a lot of pain, and that he had sinus problems, and headaches. He also stated that his father almost died from diabetes. The Veteran's uncle stated that the Veteran has become distant and has very bad migraines. The Veteran's eldest son stated that his father was in a lot of pain and he recalls that after service his father could not pick him up anymore to play. He also stated that his father was more distant and was always tired and had headaches, back pain, and sinus infections. A friend of the Veteran stated that the Veteran has become more distant, and he is worried about his friend. He stated that the Veteran has headaches (migraines) and back pain. 

In August 2012, the Veteran submitted a letter on his behalf stating that he proudly served the military. He saw a good friend get killed. He has terrible headaches since basic training. He also saw dead bodies near the burning oil field. He indicated that he has applied for PTSD benefits but has been turned down since he does not "qualify" and is frustrated and depressed. He also stated he had sinus problems since returning from the gulf. He stated, "I have about nine different health issues all were in before the December 2011 time which was granted to the Veteran's."

In July 2012, the Veteran was afforded an examination for his mental conditions. The examiner noted that the Veteran was previously diagnosed for depressive disorder based on history only, and cannabis use. The examiner stated that the Veteran over-reported his psychopathology to such a degree that the profile and code type are not interpretable. The examiner stated that the Veteran's mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner declined to offer an opinion until he had the entire C-file to review.

In January 2013, VA secured a medical opinion for the Veteran's secondary service connection claim. The examiner opined that the Veteran's mental conditions are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner stated that the Veteran did not identify his service-connected disability with the cause of his depression. The examiner stated that he specifically asked the Veteran the cause of his depression, and the Veteran completely focused on other events and circumstances as being the cause of his depression. The Veteran did not endorse the service-connected disability as being a contributing factor in the worsening of his depressive symptoms either. 

The examiner stated that the Veteran had several non-service connected disabilities such as diabetes, strokes, facial palsy, osteoarthritis of the hip, headaches, sleep apnea, shoulder arthralgia, and chronic back pain that are more likely the result of his claimed depression. In addition, the examiner stated that there are no treatment records that linked the Veteran's service-connected disability with a depressive disorder or any other mental health diagnosis. There were no treatment records that indicated exacerbation of mood symptoms secondary to the Veteran's service-connected left knee disability. The examiner stated that, the Veteran's service-connected disability is rated at 10 percent and is unlikely to have any bearing on his current mood.

In May 2017, the Veteran testified at a Board hearing. The Veteran testified that he lost a friend. The Veteran testified they were out on a recon mission and they came under attack. One of the Sergeants was in a tank that was hit, and he had his head blown off. Another Sergeant was burned up pretty bad, and the Veteran was unsure if he lived. The Veteran explained there was a brotherhood. The Veteran testified that he did not tell anyone and kept his feelings to himself. The Veteran testified that subsequent to service he had difficulty sleeping because he kept playing "this picture" in his head. The Veteran testified that he has depression because of his pain from his left knee.

In November 2019, the Veteran was evaluated for PTSD. The examiner stated that the Veteran's current symptoms are consistent with meeting full, current criteria for PTSD based on the Veteran's self-report. The examiner included a disclaimer indicating that the diagnosis was based solely on the Veteran's self-report of symptoms.

In July 2020, the Veteran was afforded an examination for his mental health. The examiner noted that the Veteran does not have a diagnosis of PTSD because he does not meet the diagnostic DSM-5 criteria and has another mental disorder diagnosis. The examiner explained that the Veteran's self-reporting is not deemed credible because of his inconsistent statements. The examiner stated that there are contradictions between the Veteran's self-report,

In this evaluation compared to prior medical records; contradictions between the veteran's self-report in prior medical records compared to other medical records; and the results of the veteran's self-report on multiple objective measures of psychological functioning that document malingering and feigned psychiatric and cognitive symptoms.

The examiner also discussed the Veteran's objective testing and determined that the Veteran's self-report documents malingering and feigned symptoms. The examiner explained that a more stringent test score was used to determine if the Veteran was malingering, and the Veteran's score exceed the more stringent criteria. On the second test, used specifically for PTSD the Veteran's score was above the cutoff score recommended, and was also above the more stringent criteria. In essence, the examiner found that the Veteran was not credible in his self-reporting and identified at least 6 inconsistencies in the Veteran's testimony. For example, his testimony about his medications was inaccurate; his pain scores were inconsistent; information about the timing of his wife's murder deviated between in and out of service; his usage of marijuana was inconsistent; loss of job was described to be due to PTSD and then at other times was due to theft; reports of chronic depressive and PTSD since 1992 but he denied it in 1996, 2002 and 2007. 

Depressive disorder

The July 2020 VA examiner opined that the Veteran's claimed depressive disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As to the rationale, the examiner explains that the Veteran has no depression documented in service, and his depression screening in 2007 was negative. The examiner acknowledges that the Veteran has intermittently reported symptoms of depression post-service. The examiner stated, "associated situational circumstances for the depressed mood over time have varied in clinical treatment notes though a consistent explanation by the veteran for his emotional stress is denial of his service-connection claims." The examiner points to a specific mental health note in June 2020, where the Veteran reported that most of his mood symptoms were directly related to stress with his benefits. 

The Veteran also reported long-term chronic disrupted sleep. The examiner notes that "his description multiple contributing causes exist including sleep apnea, diabetes, and nocturnal urination." The examiner stated that while the Veteran reported that he has had ongoing chronic depressive and PTSD symptoms since 1992, "multiple other notes show this not to be the case."

The examiner noted that the September 2007 PTSD assessment resulted in a diagnosis of major depression. The September 2007 examiner stated, the Veteran does not meet the criteria of PTSD. "He does endorse depressive features associated with numerous life stressors and his chronic medical problems." The life stressors post-service was documented as 

[...]they eventually divorced. He lost his job due to a charge of theft that he describes as unfounded. His mother, who was a supportive figure in his life died of ovarian cancer. He was diagnosed with diabetes and suffered a what he describes as a stroke, but his chart indicates that he had Bells palsy which left him with some facial weakness and ptosis.

In a March 2008 psychiatric consult note an examiner documented that the Veteran's primary complaint was a depressed mood and anxiety attributed to his firing from his job and health issues. 

The July 2020 examiner also noted that the Veteran's treatment records reflect that the Veteran reported during his treatment in 2007/2007 to 2011 that the primary cause of his symptoms included loss of job, arrest and conviction, medical issues, and separation from his wife. 

In November 2011, the Veteran denied ongoing major mood symptoms. A year later he sought treatment after the Veteran reported "a misunderstanding about thoughts of suicide." He noted feelings of up and downs. The examiner stated that throughout 2014-2017, the Veteran's mood symptoms discussed were exclusively in response to daily stressors.

The examiner concluded that the medical opinion is based on the non-credible self-reporting and a thorough review of the records including the Veteran's service treatment records, clinical treatment notes, and the preponderance of the evidence does not support a nexus between the Veteran's current reported depressive symptoms and service.

Cannabis Abuse

The July 2020 VA examiner opined that the Veteran's cannabis abuse was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that cannabis abuse can be considered willful misconduct and that there is no nexus to service and his cannabis abuse. The examiner stated that the Veteran's "mood issues in the past including depressive symptoms and anxiety have been considered possibly attributed to cannabis use as early as 11/2008 and as recently as 2019."

The Veteran's symptoms including irritability, aggression, sleep difficulty, and depressed mood are all known withdrawal symptoms of cannabis. The examiner points to the January 2009 note where the Veteran reported that he was abstaining from alcohol and cannabis, and he no longer had a depressed mood. The examiner stated that, given the Veteran's "non-credible self-report during the C&P examination, and documentation clinically that he was using at least as recently as 11/2019, it is more likely than not that cannabis use did contribute in some way to past diagnoses of depression and it is unknown if it continues to affect his mood.

Diagnosis of mood disorder NOS

The July 2020 VA examiner opined that the Veteran's claimed diagnosed mood disorder (NOS) was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran's treatment providers tried to rule out bipolar disorder and intermittent explosive disorder. 

The rule/out considerations were considered simultaneously with Cannabis Abuse and a Diagnosis of Mood Disorder NOS. The notes in 11/2008 containing these diagnoses document that the veteran had discontinued heavy alcohol use at the time but was using cannabis. The provider documents: "Patient has stopped consuming alcohol. Discussed with patient that the cannabis use can contribute to current presentation and that he must stop use." In the context of substance use, the provider was thus not able to make a diagnosis more specific. As those sessions continued and he reported abstinence from alcohol and cannabis, he continued to deny significant depressive symptoms other than as an immediate and temporary response to negative life events.

The examiner noted that the Veteran stated that he had ongoing intermittent anger and irritability (including participation in fights) beginning during the Veteran's childhood. In multiple mental health notes between 2008-2010, the Veteran did not report military service as a primary or significant contributor to his irritability or frustration. In November 2011, the Veteran denied anxiety and depression and his mood disordered was documented as resolved. In late 2012/early 2013 the Veteran again reported depression and anxiety symptoms. In a March 2013 treatment note the provider notes, "poor choices he made in the past and is having a hard time dealing with them." The Veteran's mood symptoms discussed in 2014-2016 are primarily in response to daily stressors. The examiner states that a psychiatrist provides a similar summary to his stating, 

There does not appear to be a clear manic or hypomanic history present, by patient's account. There instead appears to be episodes of impulsivity, poor sleep, anger/irritability for which the patient has been treated for in the past. Concern for bipolar d/o appears to have presented [...] during evaluation on 11/25/08 at which time the patient noted increased irritability while on Prozac. Assessment at that time was notable for: "[the Veteran] presents with anger issues, unclear whether this is a bipolar disorder, due to cannabis use of intermittent explosive disorder."

The Veteran reported he was subsequently treated for anger/irritability issues and was placed on mood stabilizers and anti-psychotic agents. "Without a clear manic episode in his hx, he may meet criteria for an Impulse Control Disorder or Anger disorder vs true Bipolar 1 or 2 disorder. Will continue to closely monitor this symptom during treatment course." The examiner states that this supports the possibility that bipolar disorder is not an accurate diagnosis, but instead that the Veteran's irritability responds to the medication for it. Finally, the examiner states that there is no evidence "of manic symptoms in service or depressive symptoms in service to support connection to this diagnostic possibility."

Anxiety

The July 2020 VA examiner opined that anxiety was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that in August 2010 the anxiety diagnosis was first established during a PTSD evaluation, that did not diagnose PTSD. The psychologist attributed the Veteran's symptoms to both combat and growing up in a violent inner-city neighborhood (where he previously reported witnessing violence as well as participating in fights/violent behavior). The psychologist commented, 

Doesn't evidence much distress when describing trauma but doesn't seem to be avoiding the distress. This evaluator was unable to pin down and evaluate specifically the frequency and intensity of re-experiencing symptoms and again, the veteran didn't seem to be engaging in avoidance during the interview. [..] reliving symptoms but these do appear to be of sufficient intensity or frequency to warrant treatment at this clinic. That is, trauma-focused interventions would likely not be helpful.

The examiner indicated subsequent to the Veteran being denied a claim in August 2010, that the Veteran's primary mental health notes document perceived unfair treatment and harassment but does not focus on any trauma. Subsequent notes also document ongoing anger about the Veteran losing his job without mentioning military experiences. The Veteran's treatment records noted, the Veteran's "end of career at Pepsi and the resulting legal accusations are something that the Veteran cannot stop thinking about and he reports he has not accomplished his goals." 

In the August 2010 PTSD evaluation, that resulted in an anxiety diagnosis, the examiner noted that the diagnosis was based on one experience from deployment, childhood experiences, as well as post-service witnessing of his wife's deceased body. These distresses were noted to not be clinically significant enough to warrant treatment. The examiner reiterated that the therapy sessions prior to and subsequent to this session did not focus on military experiences. The examiner concluded that the diagnosis at the time of the anxiety diagnosis was less likely than not proximately caused by or due to any in-service related event. The examiner also noted that the Veteran denied major mood symptoms including depression and anxiety during his mental health follow-up. In September 2012, the Veteran was again diagnosed with an anxiety disorder NOS. The psychiatry notes included anxiety, depressed mood with irritability/agitated and hearing voices. The examiner noted, 

Multiple issues are documented as contributing including him living in a rooming house and likely/potential divorce from wife were noted.  In January after that, he was referred to "Pain psychology" with primary headaches. From start of pain biofeedback treatments, he is also intermittently diagnosed with Mood disorder NOS. 

The Veteran was taught relaxation techniques that were helpful in allowing him to relax. The examiner concluded that the preponderance of the evidence demonstrates that it is less likely than not that any in-service event was the primary and proximate cause of this diagnosis over the years. 

Insomnia

The July 2020 VA examiner opined that the Veteran's claimed insomnia was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran does not have a current diagnosis of an insomnia disorder. The examiner stated that while the veteran had complaints of poor sleep at the time of his discharge, he was not taking any medication, and he did not report any other disturbances after service until 1996. Then after 1996, the next report of a sleep disturbance was not until 2007. "Multiple issues were potentially contributing to disrupted sleep including pain, rhinitis, undiagnosed sleep apnea, diabetes symptoms at night, cannabis and alcohol use, and mood symptoms."

The examiner stated that it was not until January 2011, that the Veteran was diagnosed with an insomnia disorder. The examiner noted at that time, there were multiple therapy notes that documented non-military related contributions such as that the Veteran has not accomplished his goals. The examiner also noted there were discussions about the Veteran's loss of job and legal accusations against the Veteran and being separated from his wife. The examiner concluded that the service treatment records, and treatment records do not support a nexus to service for an insomnia diagnosis. 

PTSD

The July 2020 VA examiner opined that the Veteran's claimed prior diagnosis of PTSD was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran does not have a current diagnosis of PTSD. The examiner noted that in November [or December] 2019, the Veteran had a PTSD diagnosis, but that the clinical context used different diagnostic guidelines. The diagnosis was based entirely on the Veteran's subjectively reported symptoms and had no objective assessment of the response style. The examiner also stated that, 

Because of the exceptional evidence of  noncredible self-reporting, the diagnosis of PTSD assigned to him after a clinical evaluation in NOV 2019 is not considered to carry weight compared to the [remainder] of the evidence across his post-military years of presentation to mental health. That evaluator specifically states in their report "The listed diagnosis is based solely on the veteran's self-report of symptoms. The clinical assessment that led to this diagnosis did not include any measure of potential response bias, a review of the veteran's claims file, or a review of other collateral sources. The assessment results and diagnosis documented in this note are for treatment purposes only and should not be used to make legal decisions, such as VA Compensation and Pension determinations."

The July 2020 VA examiner reiterated that over the past 11 years the Veteran's therapy sessions did not document any mood disorders related to service unless those sessions were in relation to his claims for benefits in 2012. The examiner stated that it was not until 2016 that there were mentions of vigilance behaviors. The only trauma symptom noted as "experienced currently in those notes that is specifically associated with trauma is "hypervigilance" from 2016-2019 (until her requests a PTSD exam that occurs 11/2019)." The examiner stated that hypervigilance alone is not enough to warrant a diagnosis of PTSD per the DSM criteria. The examiner concluded by stating, in the "absence of those compensation seeking activities, the vast majority of his lengthy mental health history document NO trauma related symptoms, or document only hypervigilance which as noted above is not necessary or sufficient for a diagnosis of PTSD."

Analysis of mental disorders

The Veteran is claiming entitlement to service connection for a psychiatric disorder, to include PTSD and major depressive disorder.

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, 1166 -67 (Fed. Cir. 2004).

Although the criteria for establishing entitlement to service connection for psychiatric disabilities other than PTSD are as stated above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran had diagnosis of depression, anxiety, and PTSD (mental disorders) during the appeal period, the preponderance of the evidence weighs against finding that the Veteran's mental disorders began during service or are otherwise related to an in-service injury, event, or disease.  

Treatment records show that the Veteran reported chronic depression and PTSD since 1992, but he denied it in 1996, 2002, and 2007. The Board acknowledges that the Veteran is competent to report having experienced symptoms of depression, anxiety, PTSD, insomnia, and symptoms of other mood disorders intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a psychiatric disorder, to include major depressive disorder and PTSD. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Board also finds that the Veteran is not credible because of his inconsistent statements as described by the July 2020 VA examiner.

Further, the July 2020 VA examiner opined that the Veteran's psychiatric disorder, to include major depressive disorder and PTSD was not at least as likely as not related to an in-service injury, event, or disease. As to the rationale for depression, the examiner explained that the Veteran did not have any depression documented in service. The examiner acknowledged that the Veteran had post-service complaints, but these were primarily around the time the Veteran was seeking benefits and were not consistent throughout the record. The examiner explained that while the Veteran does endorse symptoms of depression, they are primarily about the Veteran's life stressors and not based on his military service. For example, the Veteran's first wife was murdered after service, and he lost his job due to theft. The Veteran also has several severe nonservice-connected disabilities such as diabetes and potentially strokes. As discussed above, the examiner did not find the Veteran to be credible.

As to the rationale for cannabis use the July 2020 VA examiner indicated that cannabis use can be considered willful misconduct. The examiner also stated that the Veteran's mood issues were considered to be possibly attributed to the Veteran's cannabis use. When the Veteran abstained from alcohol and cannabis, he no longer had a depressed mood. The examiner also stated that he did not find the Veteran credible and that it is more likely than not that the Veteran's cannabis use contributed to the Veteran's depression.

As to the rationale for a diagnosis of mood disorder NOS the examiner explained that the Veteran's life choices impacted his mood. There was a concern that the Veteran may have been bipolar but once the Veteran stopped using cannabis and alcohol the Veteran's symptoms subsided. Finally, the examiner stated that there is no evidence "of manic symptoms in service or depressive symptoms in service to support connection to this diagnostic possibility."

As to the rationale for anxiety, the examiner stated that the distresses noted were not clinically significant enough to warrant treatment. The examiner reiterated that the therapy sessions prior to and subsequent to this session did not focus on military experiences. The examiner cited to a psychologist that stated that the Veteran did not have much distress describing any trauma. Subsequent notes also document ongoing anger about the Veteran losing his job without mentioning military experiences. The examiner also noted that the Veteran denied major mood symptoms including depression and anxiety during his mental health follow-up. The examiner noted that multiple issues are documented as contributing to the Veteran's anxiety such as living arrangements, potential divorce, and pain from his [non-service connected] headaches.

As to the rationale for insomnia, the examiner explained that the Veteran does not have a current diagnosis for insomnia. The examiner explained, "multiple issues were potentially contributing to disrupted sleep including pain, rhinitis, undiagnosed sleep apnea, diabetes symptoms at night, cannabis and alcohol use, and mood symptoms." The examiner stated that it was not until January 2011, that the Veteran was diagnosed with an insomnia disorder. The examiner noted at that time, there were multiple therapy notes that documented non-military related contributions such as that the Veteran has not accomplished his goals.

As to the rationale for PTSD, the examiner stated that the Veteran does not have a current diagnosis of PTSD, and the diagnosis that he had was based only on the Veteran's self-reported symptoms, which is not adequate. The examiner places the most weight on the fact that the Veteran had at least 6 inconsistent statements which makes the Veteran less than credible. 

The examiner reiterated that over the past 11 years the Veteran's therapy sessions did not document any mood disorders related to service unless those sessions were in relation to his claims for benefits in 2012. The examiner stated that it was not until 2016 that there were mentions of vigilance behaviors. The only trauma is hypervigilance from 2016-2019, until the Veteran requested an examination in November 2019. The examiner stated that hypervigilance alone is not enough to warrant a diagnosis of PTSD per the DSM criteria. The examiner concluded by stating, in the "absence of those compensation seeking activities, the vast majority of his lengthy mental health history document NO trauma related symptoms, or document only hypervigilance which as noted above is not necessary or sufficient for a diagnosis of PTSD."

The Board considered the Veteran's lay statements, buddy statements, service treatment records, post-service treatment records, and VA examinations and concludes that the Veteran's claimed psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) is not at least as likely as not related to an in-service injury, event, or disease. The Board finds that the July 2020 examiner's opinion is the most probative evidence, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

The Board does not find the Veteran's statements to be credible because the Veteran appears to have symptoms related to service when he is filing for benefits, and then they subside, or they are linked to life events post-service. In addition, the Veteran's testimony is inconsistent throughout the record as described above. Finally, the Board finds the Veteran's claimed psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) is not at least as likely as not related to an in-service injury, event, or disease because there are no private or VA medical opinions that are contradictory.

The Board also concludes that VA has made appropriate efforts to assist the Veteran in corroborating his reported stressors that he testified to during the May 2017 hearing. Specifically, in January 2019, VA sent the Veteran a letter to request specific details of his reported stressor, but the Veteran failed to respond. The service treatment records, and service personnel records are absent for evidence that the Veteran's reported in-service stressors occurred. The record therefore does not contain credible supporting evidence beyond the Veteran's own statements that the reported in-service stressors occurred. As such, the criteria for entitlement to service connection for PTSD have not been met, and the claim must be denied. See 38 C.F.R. § 3.304(f).

Secondary Service Connection

The Veteran contends that his psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) is secondary to his service-connected left knee condition.

Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.

The question for the Board is whether the Veteran's claimed psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability.

The Board concludes that, while the Veteran has had psychiatric disorders, to include major depressive disorder and post-traumatic stress disorder (PTSD) diagnosed during the appeal period, in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the preponderance of the evidence is against finding that the Veteran's psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD) is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability.  38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a).  

The January 2013 VA examiner opined that the Veteran's psychiatric disorder, to include major depressive disorder and PTSD is instead more likely due to the Veteran's non-service connected disabilities such as diabetes, strokes, facial palsy, osteoarthritis of the hip, headaches, sleep apnea, shoulder arthralgia, and chronic back pain. As to the rationale, the examiner stated that the Veteran did not identify his service-connected disability was the cause of his depression. The examiner stated that he specifically asked the Veteran the cause of his depression, and the Veteran completely focused on other events and circumstances as being the cause of his depression. The Veteran did not endorse the service-connected disability as being a contributing factor in the worsening of his depressive symptoms either. 

In addition, the examiner stated that there are no treatment records that linked the Veteran's service-connected disability with a depressive disorder or any other mental health diagnosis. There were no treatment records that indicated exacerbation of mood symptoms secondary to the Veteran's service-connected left knee disability.

The Board acknowledges that the examiner only checked the box for the Veteran's mental conditions are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition and did not check a box for aggravation. However, the Board finds that the examiner's rationale clearly demonstrates that the Veteran did not attribute his symptoms during his examination to his service-connected condition, during the examination, when specifically asked. The examiner stated that the Veteran did not endorse the service-connected disability as being a contributing factor in the worsening of his depressive symptoms. 

In addition, the Board notes that while the July 2020 examiner was not asked to provide a secondary service connection opinion, he indicated that the Veteran's testimony was inconsistent throughout his treatment records. The Veteran's service treatment records were silent to any complaints of depression. The Veteran's post-service treatment records primarily reveal that the Veteran only brought up military service in relation to his psychiatric conditions when he was filing for benefits and the Veteran's statements were not consistent throughout the record.

Thus, while the Board acknowledges that the Veteran is competent to report having experienced symptoms of depression, due to his service connected knee condition intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a psychiatric disorder, to include major depressive disorder and PTSD based on a secondary service connection theory. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the January 2013 VA addendum opinion.

In conclusion, the Board finds that service connection for a psychiatric disorder, to include major depressive disorder and PTSD, on a direct or secondary basis is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence is against the claim. 

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Quist 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.