Citation Nr: 21040512 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 14-36 651 DATE: July 5, 2021 ORDER Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder (MDD), and to include as secondary to the service-connected right knee disability, is denied. FINDING OF FACT A psychiatric disorder other than PTSD, to include MDD, did not have its onset in service, is not otherwise related to service, and is not caused or aggravated by the service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder other than PTSD, to include MDD, and to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to November 1976. In April 2018, the Board remanded the claim for service connection for a psychiatric disorder for a VA examination and nexus opinion. In December 2019, the Board remanded the claim for service connection for a psychiatric disorder again because it did not appear the Veteran received proper notice of the scheduled VA examination. Thus, it remanded the claim for a VA examination and nexus opinion. The Board finds there was substantial compliance with this development. In February 2021, the Board denied the claim for service connection for PTSD and remanded the claim for service connection for a psychiatric disorder other than PTSD for treatment records related to two hospital stays for suicidal ideation around 1980. In February 2021, in compliance with the Board's remand instructions, VA sent a Subsequent Development Letter to the Veteran asking for him to provide VA with permission to obtain the non-VA medical records from his hospitalizations and attached VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the VA for the Veteran to complete and submit to VA. The agency of original jurisdiction also informed the Veteran that he may want to obtain and submit the records himself. The Board notes that, to date, the Veteran has not returned either form nor submitted the records; therefore, VA is unable to request these hospitalization records or review them in connection with his claim. The Board finds there was substantial compliance with the Board's February 2021 remand directives. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Entitlement to service connection for a psychiatric disorder other than PTSD, to include MDD, and to include as secondary to the service-connected right knee disability. The Veteran contends his psychiatric disorder is related to service. In the October 2014, VA Form 21-0781, Statement in Support of Claim for PTSD, the Veteran stated he was afraid of being exploited by military doctors when considering surgery after injuring his right knee during service, and this is what caused his psychiatric disorder. On the May 2018 VA Form 21-4138, Statement in Support of Claim, the Veteran stated he still has nightmares of falling and injuring his right knee in service like it happened yesterday. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection for a psychiatric disorder, to include MDD, on direct and secondary bases. The reasons follow. As to evidence of a current disability, a January 2020 VA examination report shows that the Veteran was diagnosed with MDD, single episode, in partial remission. January and June 2020 VA treatment records also document a diagnosis of MDD. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran developed a psychiatric disorder during service. For example, service treatment records do not reveal that the Veteran complained of or was treated for psychiatric symptoms during service. Although discharge medical history and examination are not in the file, the Veteran underwent a November 1976 medical board hearing. On the November 1976 Medical Board Report, psychiatric symptoms are not listed as a reason for the Veteran's subsequent discharge. The Board acknowledges that the Veteran sustained a right knee injury in service, but insofar as the Veteran alleges that he developed a psychiatric disorder in service, the Board finds the preponderance of the evidence is against a psychiatric disorder having its onset in service. However, to the extent that the Veteran alleges that the right knee injury, which occurred during service, was the cause of his developing a subsequent psychiatric disorder, then, under these circumstances, the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is also against a nexus. For example, a May 1979 private treatment record shows the Veteran had been hospitalized due to pneumonia after presenting to the emergency room with symptoms suggestive of pneumonia. When performing a review of systems and addressing the psychiatric portion, the examiner wrote there was no history of depression or mental illness. Thus, more than two years following service discharge, the Veteran was not reporting psychiatric symptoms, which is evidence against a psychiatric disorder having its onset in service. A September 2019 VA treatment record documents the Veteran's report of two past inpatient hospitalizations in the late 1980s for suicidal ideation. The Board notes that the February 2021 Board remand sought records related to these hospitalizations, and to date, the Veteran has not provided the necessary information and forms to retrieve them nor has he submitted the records himself. Thus, VA was unable to obtain and/or review these records to see if the facts established a potential nexus between the post-service psychiatric disorder and service. A March 2010 VA treatment record shows psychiatric review of systems found the Veteran did not have anxiety or depression, although a past history of depression was documented, and the Veteran was noted to be taking Paxil at that time, which is an antidepressant. A March 2011 VA treatment record documents that the Veteran's depression was stable, and he was still taking Paxil. From February 2012 to November 2018, VA treatment records show the Veteran had multiple negative depression and PTSD screens. The facts do not support a finding that the Veteran developed a psychiatric disorder in service or that the history of depression was related to service or the service-connected right knee disability. A September 2019 VA treatment record documents the Veteran denied most symptoms of depression except for "hopelessness or worthlessness, which have been present since [a motor vehicle accident (MVA)] in 1997." The Veteran denied suicidal ideation, homicidal ideation, auditory, visual, and tactile hallucinations, paranoia, and delusions. He also denied symptoms of anxiety, panic attacks, obsessions or compulsions, current or history of symptoms of mania/hypomania, and symptoms consistent with trauma or stress related disorders. This is evidence against the Veteran experiencing psychiatric symptoms since service or due to the right knee injury in service, as he attributed the feelings of hopelessness and worthlessness to the 1997 MVA. A May 2018 VA treatment record shows the Veteran reported nightmares related to the in-service accident and right knee injury; however, this is the first mention of nightmares relating to service in the treatment records which begin in January 2010. In fact, in February 2012, November 2016, and November 2017 VA treatment records, the Veteran denied nightmares. Statements made during treatment tend to be highly reliable, and the Veteran did not report nightmares during multiple psychiatric evaluations. A November 2019 VA treatment record shows the Veteran reported psychosocial stressors related to finances and being upset VA didn't do what they said they were going to do and related to medical bills post-hernia surgery that had complications and was hospitalized for four months due to complications. The Veteran was also upset and angry related to false reports of the accident on the ship. He also promoted some current symptoms consistent with trauma or stress-related disorders including nightmares twice weekly, avoiding crowds, and hypervigilance. In January 2020, the Veteran underwent a VA examination. The examiner opined that the Veteran had a diagnosis of MDD, which conformed to the Diagnostic and Statistical Manual of Mental Disorders (DSM), but found no evidence that it is related to service. The examiner explained 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. Therefore, the examiner concluded there was no nexus between military service and current symptoms. As to the Veteran's claim for secondary service connection, the Veteran has a diagnosis of MDD, and he is service-connected for a right knee disability from March 2011. Thus, the facts support the first two elements of the claim for secondary service connection, which is evidence of a current disability and evidence of a service-connected disability. However, as to a nexus between the Veteran's MDD and his service-connected right knee disability, the Board finds that the preponderance of the evidence weighs against a nexus. For example, in the January 2020 VA examination report, the examiner opined that the Veteran's MDD was less likely than not due to the service-connected right knee disability. The examiner explained that the Veteran was able to work until 1997, when he had a major MVA which led to medical retirement and disability. The examiner added there are no mental health records from 1976 to 1999 to support that MDD is due to the service-connected right knee disability. The Board affords the January 2020 VA medical opinions addressing direct and secondary service connection high probative value, as the examiner reviewed the file, examined the Veteran in person, and provided opinions that included a rationale that was based on the specific facts and medical principles. This is evidence against a finding that MDD is related to service and/or is caused or aggravated by the service-connected right knee disability. While the Veteran is competent to report symptoms that he experienced in service and since service, he is not competent to directly link a current psychiatric disorder to service, as medical expertise is required. In this regard, the question of diagnosis and causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of diagnosis and etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the diagnosis of MDD and service and the service-connected right knee disability to weigh against the January 2020 opinions. For all the reasons laid out above, the Board concludes the preponderance of the evidence is against the claim for service connection for a psychiatric disorder other than PTSD, to include MDD and to include as secondary to the service-connected right knee disability. The benefit-of-the-doubt doctrine is not for application, and the claim for service connection is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.