Citation Nr: 21042651 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-31 000 DATE: July 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied FINDING OF FACT An acquired psychiatric disorder did not manifest in active duty service and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection of an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from June 2007 to June 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) at the San Diego RO. The Veteran's claims file contains a copy of the hearing transcript. The VLJ retired and the Veteran was offered a new hearing through correspondence of both February 2021 and May 2021. To date, the Veteran has not responded to the Board's correspondence. The Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychological disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In July 2020 the Board issued a remand order for further development. There has been substantial compliance with Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric condition The Veteran asserts that he suffers from a depressive disorder that was incurred in, aggravated by, or otherwise attributable to, due to his active duty service. A review of the Veteran's service treatment records (STRs) does not show complaint, treatment, or diagnosis of a depressive disorder (or a psychiatric condition). However, upon review of the Veteran's service department records, the Veteran underwent mandated treatment for alcohol and substance abuse during active duty service. In September 2013, the Veteran reported for a VA examination. A clinician reviewed the claims file; considered the Veteran's lay accounts; and conducted an appropriate evaluation. The clinician provided diagnoses of major depression and polysubstance dependence. The Veteran's symptoms included depressed mood; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances and suicidal ideation. The Veteran did not present any theory as to how his military service caused these diagnosed entities. The VA examiner opined that, [The Veteran] had a significant problem with alcohol and drugs in service, was mandated to treatment and had numerous disciplinary problems for this. He has continued to use alcohol and marijuana [MJ] though currently trying to cut down on alcohol (not MJ). In the past several months he has become significantly depressed with low motivation and anhedonia. He is unproductive and doesn't have many activities. This appears to be a progression from his in-service diagnosis of alcohol dependence (though at the time was noted to be euthymicnot depressed). Depression is a common co-morbidity with substance use disorders." See September 2013 C&P Exam. In August 2014, the Veteran's mother submitted a lay statement. She conveyed that she observed the Veteran's mental health problems and that the Veteran stated that h "you just don't understand what I went through while I was in the Navy. I've seen so many horrific things that I don't want to talk about it. I can't sleep at night. I had nightmare (sic) and still do. I wake up in a cold sweat. I have to take medication that's prescribed to me to help me cope." See June 2015 Buddy/Lay Statement. Following multiple interactions with the criminal justice system and a psychiatric hospitalization, the Veteran reported for a VA examination in September 2018. The clinician reported that the Veteran stated that he had developed an anger problem while deployed on the USS Boxer in 2008-2009. The Veteran provided a host of troubling accounts during this deployment. He reported that he was "picked on a lot" in service because he was in a relationship, and in the Veteran's own words "I couldn't have sex right, and she told everyone." He described seeing dead bodies while stationed on this vessel in 2009 "somewhere in the Middle East." Also, he stated that he was involved in combat activity during anti-pirate missions. Moreover, the Veteran added that he was sexually assaulted in early 2009 when living on base "by a random guy in town" at the perpetrator's home. Concerning the 2009 sexual assault, he explained that he did not report it "because he didn't want to be a victim." Consequently, the clinician provided a diagnosis of posttraumatic stress disorder (PTSD). See September 2018 C&P Exam. (The Veteran was subsequently granted service connection for PTSD, with an effective date of January 1, 2018.) At the April 2019 Board hearing, the Veteran testified that he had suffered from depression in service but did not report it because of the "culture" on the ship where he served. The Veteran also testified that he did not have an alcohol problem in service and that he has not, and does not, suffer from alcohol dependence. Rather, the Veteran conveyed that he suffered from depression in service and his symptoms have been chronic since that time. See April 2019 Hearing Transcript. In July 2020 the Board remanded for an addendum medical opinion. In a remand directive, the Board noted that the Veteran had been granted service connection for PTSD but seeks service connection for a depressive disorder as a separate disability. Specifically, the Board ordered a medical opinion to determine whether a depressive disorder was in any way attributable to the Veteran's active duty service. In October 2020, a VA clinician rendered the directed addendum opinion. In pertinent part, the clinician indicated that The VA has not diagnosed the Veteran with an acquired psychiatric disorder separate from PTSD. The clinician articulated that the Veteran's [P]TSD diagnosis was given from lay person statements and from treatment notes, not related to connection to service time. [The] Veteran [reported] that there was MST [miliary sexual trauma] [and] trauma related to viewing dead bodies. [...] However. medical and service records are silent for reports of emotional difficulties and seeking out treatment for anxiety, depression, nightmares, any of the symptoms [that] qualify for a full diagnosis of any mental health disorder. It is noted that the Veteran abused alcohol and states himself that it was as a result of overconsumption and that his childhood was difficult. [Nevertheless,] he negates during treatment in 2009 of any [identifiable] trauma related to service events. In February 2021, the Veteran's representative submitted an appellate brief in which he reiterated the Veteran's contentions. The Board affords significant probative value to addendum opinions of the October 2020 VA physician. He reviewed of the Veteran's record, considered his lay statements, and provided a detailed evidence-infused rationale based on the record. To date, neither the Veteran nor his representative has provided competent psycho-medical evidence to support the Veteran's claim of having a "distinct" acquired psychiatric disability. The Board informs the Veteran and reminds his representative that a Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107 (a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006) As the October 2020 nexus opinion is acceptable for adjudication and there is no competing positive nexus opinion of record, the Board finds the Veteran's claim must be denied as there is no competent evidence of record to establish a nexus between the Veteran's purported depressive disability and active duty service. (Continued on the next page) In reaching this conclusion, the Board acknowledges that the Veteran believes that he suffers from a depressive disorder that is independent of PTSD and attributable to service. The Board has thoroughly considered the Veteran's lay statements. However, the Veteran is not shown to possess the requisite psycho-medical training or expertise to provide a competent opinion regarding the etiology of an acquired psychiatric disorder. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The benefit-of-the doubt doctrine is not for application, and the claim for service connection for an acquired psychiatric disorder must be denied. 38 C.F.R. § 3.102; Gilbert 1 Vet. App. 49. B. J. Komins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.