Citation Nr: 21042423 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-29 872 DATE: July 13, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to obstructive sleep apnea (OSA) and an acquired psychiatric disorder, is remanded. Entitlement to service connection for OSA, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for infectious hepatitis is remanded. FINDING OF FACT The Veteran's current psychiatric disorder, to include unspecified depressive disorder, neither had its onset in nor is otherwise related to his active duty service. See July 2020 VA Psychiatric Examination; see also May 2015 Private Psychiatric Examination; July 2019 VA Psychiatric Examination; February 2020 VA Psychiatric Addendum Opinion; February 2021 Private Psychiatric Examination. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 1981 to July 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2014 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Service Connection for an Acquired Psychiatric Disorder Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the Veteran has a current diagnosis of unspecified depressive disorder, which he contends had its onset in service and is related to racial harassment he experienced. See, e.g., VA Examinations dated July 2019,July 2020. The remaining question is whether there is any nexus between his current depression and his service. On this point, the Veteran has been afforded two VA examinations and medical nexus opinions, as well as an addendum opinion, and has submitted two private examinations and medical nexus opinions. Of these, unfortunately, a May 2015 private examination as well as a July 2019 VA examination and February 2020 addendum opinion have been found to be inadequate for VA purposes by prior Board decisions. See BVA Remands dated October 2018, April 2020. The Board found that the May 2015 private examination failed to provide a fully articulated medical rationale in support of its conclusion that the Veteran's depressive disorder began in service. The Board also found that the July 2019 VA examination and February 2020 addendum opinion failed to comply with the Board's October 2018 remand orders, which directed the examiner to consider the Veteran's reports of in-service racial harassment, the May 2015 private examination, October 1998 VA treatment records reflecting a report of alcohol or drug abuse before service, and lay statements by the Veteran's mother and his friend reporting that he underwent significant psychological change during service. Following the April 2020 Board remand which found that the July 2019 VA examination and February 2020 addendum opinion were inadequate, the Veteran was afforded another VA examination and opinion in July 2020 and submitted another private examination and opinion, dated February 2021. The July 2020 VA examiner concluded that the Veteran's current depressive disorder was not related to his active duty service for the following reasons: 1) The evidence reflects that the Veteran began drinking before service to deal with the trauma of his father's murder, indicating that his depression and substance abuse likely pre-dated his service; 2) Although racial harassment and resulting altercations may have aggravated the Veteran's existing depression, no symptoms of depression were noted when the Veteran sought substance abuse treatment in October 1998 or at a 2004 psychiatric evaluation; 3) Therefore, because the Veteran has also reported contemporary stressors sufficient to account for his current depression, in light of the evidence of no depression during the time between his service and the present, it is more likely that his current depression is caused by contemporary stressors and not related to service. On the other hand, the February 2021 private examiner concluded that the Veteran's depressive disorder had its onset during his military service. The examiner performed a thorough review of the record as well as a review of some related medical literature, but provided almost no rationale for her opinion, stating only: "there is no evidence that the Veteran suffered from depression or any mental health disorder prior to the military. Though he grieved the loss of his father three years prior to enlistment, he was neither diagnosed nor treated for any mental health disorder until the military. He admitted he drank and smoked marijuana socially prior to the service; however, recreational use is no suggestive of a mental health disorder." In light of the Veteran's own reports that his drinking increased following his father's death as a way to "numb his pain," the Board finds that the February 2021 private examiner's statement that there is "no evidence" of depression or any mental health disorder prior to the Veteran's service is contradicted by the actual evidence of record. See October 1998 VA Treatment Record (VATR) (Veteran reported drinking and drug use increased after his father's death); January 2021 Veteran Statement. Therefore, because the February 2021 private examination rests on findings contrary to the evidence of record, the Board finds that it is inadequate and affords it little probative weight. As a result, the only competent medical nexus evidence of record comes from the July 2020 VA examination and opinion. The July 2020 VA opinion addressed all lay statements and record evidence as directed by the Board's April 2020 remand, and supported its conclusions with a fully articulated medical rationale. The Board finds that the July 2020 VA nexus opinion is competent, credible, and entitled to significant weight. Due to the fact that every other examination and medical opinion, whether VA or private, has been found to be inadequate, the only probative evidence to the contrary are the Veteran's own statements and other lay statements of record. Although the Veteran is competent to report his own symptoms and the Board finds him to be credible, he is not competent to opine as to the etiology of his disabilities. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent as to features or symptoms, but not etiology, of an injury or illness). Therefore, the Board affords more weight to the July 2020 VA nexus opinion than to the Veteran's lay statements and the other supporting lay statements of record. Finally, the Board finds that the reasoning of the July 2020 VA examiner is supported by the record. In particular, the Board notes that the Veteran denied psychiatric symptoms several times in between service and the present, and that records reflecting a diagnosis of unspecified depressive disorder in 2015 reflect a host of contemporary stressors, such as chronic illness, familial discord (conflict with his mother, and a demanding work environment. See October 1998 VATR (Veteran denied psychiatric problems); August 2004 VATR (no psychiatric diagnosis); March 2011 VATR (negative depression screen); October 2015 VATR (noting diagnosis of unspecified depressive disorder with multiple contemporaneous stressors). Therefore, the Board finds that the Veteran's current acquired psychiatric disorder, to include unspecified depressive disorder, did not have its onset in and is not otherwise related to his active duty service. Accordingly, service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, is not warranted. REASONS FOR REMAND 1. Entitlement to Service Connection for Headaches and OSA VA must provide a VA medical examination when there is evidence of a disability that may be associated with an in-service event, injury, or disease, but the competent medical evidence of record is insufficient to adjudicate the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has a current diagnosis of OSA, and the record reflects ongoing complaints of headaches. See, e.g., VATRs dated March 2016 (OSA diagnosis), October 2018 (complaint of headaches). Moreover, the Veteran's Service Treatment Records (STRs) reflect an assessment of vascular headaches and lay statements submitted by the Veteran and his friend attest to difficulty sleeping while in service. See August 1983 STR; April 2015 Buddy Statement; January 2021 Veteran Statement. However, there is currently no medical nexus evidence of record as to whether these disabilities are related to the Veteran active duty service. Therefore, because the competent medical evidence of record is insufficient to adjudicate the claims, a remand is necessary to provide the Veteran VA examinations and obtain medical nexus opinions for these claims. 2. Entitlement to Service Connection for Infectious Hepatitis When VA undertakes to provide an examination for a claim for service connection, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). In order to be adequate, medical opinions must support their conclusions with an analysis or rationale the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has been provided one VA examination and opinion in support of his claim for service connection for infectious hepatitis during the claim period, in August 2019. The examiner rendered a negative nexus opinion on the grounds that the Veteran had no current diagnosis of hepatitis. However, the record reflects that the Veteran did have a diagnosis of hepatitis B during the claim period, in November 2012. See January 2013 VATR. Because the August 2019 VA nexus opinion failed to consider the Veteran's November 2012 hepatitis B diagnosis, the Board finds that it is inadequate. Therefore, a remand is necessary to provide the Veteran a new VA examination and opinion in support of this claim. Moreover, the Board previously remanded this claim in April 2020 to defer adjudication pending the acquisition of updated VA treatment records. However, no updated records have been added to the claims file since that time. A Board remand confers on the Veteran the right to compliance with the remand orders and imposes on VA a concomitant duty to ensure such compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, remand is also necessary to obtain updated VA treatment records in compliance with the Board's April 2020 remand orders. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed headache disorder. The claims file must be reviewed in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed headache disorder had its onset in or is related to service, to include the assessment of vascular headaches in August 1983. A full and complete rationale for all opinions expressed is required. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of any currently diagnosed OSA. The claims file must be reviewed in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed OSA had its onset in or is otherwise related to his active duty service, to include trouble sleeping reported in an April 2015 buddy statement and the Veteran's January 2021 statement. A full and complete rationale for all opinions expressed is required. 4. Return the file to the VA contract examiner who provided the August 2019 VA hepatitis examination and opinion. If they are not available, another qualified clinician should be consulted. The examiner, following review of the claims file, must note any diagnoses of infectious hepatitis made during the claim period, to include but not limited to, the Veteran's November 2012 diagnosis of hepatitis B noted in a January 16, 2013 VATR. For each noted diagnosis, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed infectious hepatitis had its onset in or is/was otherwise related to the Veteran's active duty service? The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). 5. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and, following appropriate time for response, return the matter to the Board for further consideration. MARGARET M. LUNGER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.