Citation Nr: 21040589 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-14 655 DATE: July 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The probative evidence of record does not show that the acquired psychiatric disorder is related to active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in July 2019, when it was noted that the Veteran had filed claims for service connection for depression, anxiety, and posttraumatic stress disorder (PTSD). These claims were recharacterized as a claim for service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board remanded the issue for further development, and the case has since been returned to the Board for appellate review. Entitlement to service connection for an acquired psychiatric disorder On the May 2015 claim, the Veteran filed for service connection for PTSD, anxiety, and depression. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent an August 2015 VA examination where the examiner diagnosed alcohol use disorder and cannabis use disorder. The examiner explained that the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD. While the examiner did not endorse diagnoses of depression or anxiety, August 2014 VA treatment records note diagnoses of depression and situational depression, and September 2015 VA treatment records note diagnoses of depression and anxiety. August 2015 VA treatment records ruled out a diagnosis of a mood and adjustment disorder. Accordingly, the first element for service connection is met. At the August 2015 VA examination, the Veteran reported that they were deployed to Iraq from January to March 1991, and asserted in-service stressors, to include alarms of gas, hearing B-52 bombers, hearing shots fired, and seeing fires. The Veteran's DD-214 indicates that the Veteran's Military Occupational Specialty (MOS) was cannon crewmember and that they received two Southwest Asia Service Medals. The DD-214 also indicates that the Veteran had approximately one year of foreign service, that their last duty assignment and major command was "A CO, 6-1 FA, USAREUR E7," and that they participated in a German Headstart military education program for one week in January 1991. However, the Veteran has not provided any further information regarding their reported in-service stressors, and the record does not otherwise confirm that the Veteran engaged in any combat. During the August 2015 VA examination, the Veteran asserted that they thought they were depressed during service, and that they were sad when they separated; however, the Veteran's service treatment records (STRs) are silent for any psychiatric treatment or complaints. The Veteran also reported that during service they drank heavily, and experimented with marijuana and crack. A review of the Veteran's personnel records does find a June 1990 letter of reprimand for drunk driving. An October 1991 Medication Examination for Separation/Retirement Statement of Option indicates that the Veteran declined a separation medical examination. As the Veteran reported other ailments during service, and as psychiatric problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing psychological problems during service the Board would expect that they would have reported these problems to medical professionals. Further, during the August 2015 examination, the Veteran asserted that they were diagnosed with Traumatic Brain Injury (TBI) by VA, and while the examiner did note two incidents of head trauma during service, there is no evidence of a TBI diagnosis. October 1989 STRs note that the Veteran hit their head on a locker while wrestling. July 1990 STRs note a concussion following in incident with a truck. A separate claim for service connection for TBI was denied in the July 2019 Board decision. In the August 2015 VA medical opinion, the examiner provided a negative nexus opinion, explaining that the Veteran does not have a diagnosis of PTSD, therefore it is less likely than not that the PTSD was incurred in or caused by the Veteran's military service. Further, the examiner explained that while the Veteran reports a history of substance use prior to enlistment, there is an absence of clear and unmistakable evidence that the Veteran was diagnosed with a substance use disorder prior or during military service. The examiner stated that it appears that the Veteran's substance use disorders fully developed after military service, as evidenced by current treatment records. Hence, the examiner opined that it is less likely than not that the alcohol use disorder and cannabis use disorder were incurred in or caused by the Veteran's military service. The July 2019 Board remand instructed the RO to provide the Veteran with another VA examination to address anxiety, depression, and mood and adjustment disorders. In December 2019, the RO submitted a request for a VA examination. In January 2020, an electronic record was created to reflect that the Veteran's VA examination was canceled because the Veteran failed to appear, noting, "no show." The next day, a note was added to the Veteran's file in the Veterans Benefits Management Service (VBMS) system indicating that the RO attempted to call the Veteran to inform them that they had missed the examination, but the Veteran did not answer the phone. In the June 2021 Written Brief Presentation, the Veteran's representative asserted that the Veteran was never made aware of the examination appointment. The Veteran has not asserted any other reason for why they missed the examination. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a Veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination 38 C.F.R. §§ 3.655(a),(b). However, there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). The mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity. Davis v. Principi, 17 Vet. App. 29, 37 (2003). Having reviewed the record, the Board finds it reasonable to presume that the Veteran was notified. VA treatment records indicate that in December 2019, VA left a message with the Veteran reminding them to call to make a primary care appointment. Two months later, February 2020 VA treatment records note that the Veteran called to make a primary care appointment. Notably, other correspondence has been mailed to the Veteran that has not been returned as undeliverable since the prior Board remand. The duty to assist a claimant is not a one-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary. Wood v. Derwinski, 1 Vet. App. 406 (1991). As such, the Board must render this opinion based on the evidence of record. The Board has considered the assertions that the acquired psychiatric disability is related to in-service stressors, to include alarms of gas, hearing B-52 bombers, hearing shots fired, and seeing fires. However, while the Veteran is competent to report on their experiences related to their service, and the psychiatric disorder symptoms, they are not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, while the Veteran is certainly capable of describing feeling depressed, and reporting alcohol and drug use during service, attributing these to an acquired psychiatric disorder is beyond the capabilities of a layperson. Therefore, to the extent that the Veteran attempts to establish the etiology of the acquired psychiatric disorder, these statements are outweighed by the medical evidence of record. Further, to the extent the Veteran may assert that the symptoms began during service, as noted above, the Veteran declined to undergo a separation examination. The Board has also considered whether presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. § 3.309. However, an acquired psychiatric disorder is not a chronic condition under 38 C.F.R. § 3.309, and the record of evidence does not show a diagnosis of any psychiatric disorder until more than two decades following separation from active duty service. Therefore, consideration based on presumptive service connection for continuity of symptomatology is not warranted. Thus, the Board finds that the evidence of record does not support a finding that the acquired psychiatric disability is related to active service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.