Citation Nr: 21040875 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-07 917 DATE: July 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disability began during service or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability have not been 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 May 1989 to October 1989 and from January 1991 to March 1991. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in April 2018. The hearing transcript is of record. The Board remanded the claim in September 2018 and November 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Entitlement to service connection for an acquired psychiatric disability The Board finds that the preponderance of the evidence does not show that Veteran has an acquired psychiatric disability that is related to service. Thus, an award of service connection is not warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). 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). The record in this case is clear as to whether the Veteran has an acquired psychiatric disability, currently diagnosed as unspecified depressive disorder. See VA examinations dated August 2019 and February 2021. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran testified at the April 2018 Board hearing that being called to active duty was a traumatic experience. Following separation in 1991, his life changed drastically, to include a decline in grades, losing good jobs, beginning to drink heavily, going to jail and declining social/family relationships. The Veteran stated that there was no particular incident in service that was memorable as having caused anxiety; rather, he simply feels he "[has] not been the same" since service. Service generally caused anxiety, which led him to drink. He also stated that in service he woke up one on evening in belief that someone was on him. He sought VA treatment in 1991 when others pointed out something was amiss. The Veteran's DD-214 indicates that his military occupational specialty (MOS) was an equipment records and parts specialist. No foreign service is noted. The Veteran's service treatment records (STRs) do not contain any record of complaints, treatment, or diagnosis of an acquired psychiatric disability during service. The STRs are not otherwise suggestive of an acquired psychiatric disability during service. The Board acknowledges that the Veteran's STRs of record are incomplete. When, as here, at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a heightened obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit of the doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Veteran does not assert that he had inservice treatment. Concerning the nexus between the current disability and service, there is no favorable medical opinion of record that supports the award of service connection. VA twice throughout the pendency of this claim sought a competent medical opinion regarding whether there is a causal relationship between the current disability and service. The Veteran underwent a VA examination in August 2019. The Veteran denied disciplinary issues or ever being deployed. He reported no traumatic events during service, stating that "nothing specific" happened to him during service. The examiner opined against service connection. The examiner noted the lack of mental health or substance abuse treatment in service. The examiner stated that his symptoms are likely exacerbated, if not caused by, long-standing substance abuse. Service connection is not available as directly related to substance abuse. Further, there is no evidence to suggest that his substance abuse disorders emerged during or were triggered by trauma in service. The examiner noted that being called to active duty is stressful, but not a criterion with respect to a posttraumatic stress disorder (PTSD) diagnosis; the same applies to an in-service event when he woke up screaming because he believed a person was on him. The examiner noted that the Veteran's treatment records indicate treatment long after separation and after he began frequently using alcohol and cannibis. As he did not report a traumatic event in service or seek treatment in service, it is more likely than not that his depression is related to non-military stressors and substance abuse disorders rather than service. Furthermore, it is less likely than not that his depression and alcohol or cannabis use disorders were caused by military service as there is no evidence to suggest that these emerged during or were prompted by service. Following remand, the Veteran underwent a second VA examination in February 2021. The examiner noted that the Veteran took multiple breaks during the interview and stated that all the information was in his record and he did not believe the interview questions were necessary. Concerning social issues during service, the Veteran stated that he got along well with other soldiers. Concerning his mental health history, he reported that his drinking was due to service. He said the Army wanted him to attend rehabilitation. Concerning substance abuse history, the examiner noted that the Veteran began drinking at age 12 and using cannabis in high school and college. He reported drinking and using drugs in service. The examiner opined against service connection. She stated that there does not appear to be a relationship between the Veteran's substance abuse or depression and the military, noting his adolescent drinking and drug use. She noted his belief that the military caused him to drink. Moreover, there was no event in service that he reported that relates to depression or substance abuse. He was not deployed abroad or in combat. His STRs do not show mental or emotional problems. The Board acknowledges the contention that the February 2021 examiner used the wrong legal standard by basing her opinion on the lack of documentation in service. See May 2021 appellate brief. The Board finds, however, that the examiner did not rely exclusively on the lack of in-service documentation. Rather, she cited to other medical evidence of record as well as the Veteran's statements made during the interview. She explicitly noted his statement regarding his belief that the military caused his drinking in her opinion and made extensive interview notes in the examination report regarding her questions related to in-service events, to include in-service substance abuse and in-service mental health events. As such, the Board finds that the February 2021 medical opinion does not employ the wrong legal standard, but rather is highly probative, as 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 notes the March 2021 correspondence from the Veteran that he and the examiner did not discuss anything substantive, and that the examiner was not professional. The Board regrets that the Veteran did not have a positive experience. However, the correspondence does not indicate what relevant matters were not addressed in the interview. By contrast, the February 2021 examination report shows the examiner sought information from the Veteran in all relevant disability history sections. The examination report also indicates that the examiner asked the Veteran if he had anything else to add, and he reported that he did not but also provided information about his recent cancer diagnosis and relationship with his son. This indicates that the Veteran was provided with sufficient opportunity to raise matters important to his claim. The Board also acknowledges favorable evidence to the Veteran's claim. The Veteran had reported during the April 2018 Board hearing that he woke up screaming in service because he feared someone was on top of him. The February 2021 VA examiner did not explicitly address this statement. However, she indicated having reviewed the entire file, which contained a record of such statements. She also conducted a thorough in-person examination and the Veteran did not address this incident. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As such, the Board finds that the February 2021 medical opinion is not rendered inadequate merely for omitting explicit mention of this reported incident. As such, the Board finds the Board has satisfied its duty to assist. See 38 U.S.C. § 5103A. The Board does not find that a remand to address these statements is necessary, as there is no indication that the additional delay to do so would actually avail the Veteran of any benefit, and the current evidence is adequate for adjudication. The Board further acknowledges VA treatment records that reflect years of ongoing treatment for his conditions. The Board is sympathetic to the Veteran's condition but cannot award the benefits sought unless all legal requirements are satisfied. The Board also acknowledges the lay statements of record and the assertion that the Veteran's acquired psychiatric disability is related to service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, although the Board has carefully considered the lay contentions of record suggesting that his acquired psychiatric disability is a result of service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. Consequently, the Board affords more probative weight to the competent medical evidence of the February 2021 VA examination report. Here, the Board finds that the February 2021 VA medical opinion is based on an accurate medical and lay history as well as medical documentation provided in the claims file, to include the Veteran's STRs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Moreover, neither the Veteran nor his representative has presented or identified any contrary medical treatments or medical opinion evidence that supports the finding of a nexus between the Veteran's current disability and service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for an acquired psychiatric disability is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.