Citation Nr: 18160598
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 12-36 136
DATE:	December 27, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder is denied.
FINDING OF FACT
The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder due to a disease or injury in service, to include the diagnosis of a personality disorder in service.
CONCLUSION OF LAW
The criteria for service connection for an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1983 to October 1984.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2010 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran and his brother testified at a July 2016 Videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the claims file.  
In January 2017 and December 2017, the Board remanded this issue for the RO to attempt to obtain Social Security Administration (SSA) records and additional medical records from the Veteran’s private physician.  The record reflects that the SSA records have been obtained and associated with the claims file, and that the RO sent a letter to the Veteran in May 2018 requesting the Veteran to complete and sign VA Form 21-4241a, General Release for Medical Provider Information.  The record does not show that the Veteran returned the signed release form.  However, record reflects that the Veteran submitted a letter from his physician dated in December 2017 after the Board decision was issued.
As the RO has obtained the SSA records and has attempted to obtain the Veteran’s records by sending the VA form 21-421a form to the Veteran, and as the Veteran submitted a letter from his physician after the Board decision was issued, the Board finds that the RO substantially complied with the Board’s December 2017 remand directives, the Board may proceed with adjudicating the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998).
1. Entitlement to service connection for an acquired psychiatric disorder
Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). 
Service connection requires competent evidence showing (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). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310 (a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995).
With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record.
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 include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1).
Competent lay evidence means 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. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is not generally capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).
The Veteran asserts that he has a psychiatric disability related to his active duty service. 
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has been diagnosed with several psychiatric disorders at various times, including major depressive disorder, bipolar disorder, panic disorder, psychotic disorder, adjustment disorder, and post-traumatic stress disorder (PTSD), and the Veteran was discharged from active duty service due to adjustment disorder, the preponderance of the evidence weighs against finding that the Veteran’s psychiatric disabilities began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
The Veteran’s VA treatment records indicate that he had been diagnosed with multiple psychiatric disabilities.  However, the VA treatment records do not show a nexus between the Veteran’s current psychiatric disabilities and his active duty service.  
Service Personnel Records show that the Veteran received mental health evaluations due to a non-compliant attitude and passive aggressive behavior.  An August 1984 mental health evaluation reported a diagnosis for adjustment disorder with disturbance of conduct and passive-aggressive traits and that the Veteran displayed no suicidal, homicidal, or psychiatric symptoms and showed no abnormal judgment or cognition, but that he stated that he made a mistake in enlisting in active duty and wanted to be discharged.  The August 1984 mental health evaluation reported that the Veteran was fully responsible for his actions and fully accountable.  A September 1984 personnel record showed that the Veteran was being discharged for disrespect toward a superior Petty Officer and for disobeying a lawful order.  
The Veteran underwent a VA examination in January 2011.  The VA examiner noted that, consistent with the Veteran’s Service Personnel Records, the Veteran reported that he was referred to a Captain’s Mast because of problems getting along with his Chief Warrant Officer whom he thought was harassing and discriminating against him and was ordered to be discharged.  The Veteran then reported spending two months in confinement before being formally discharged from active duty.  There is no evidence that the Veteran experienced combat during active duty.  
The January 2011 VA examiner opined that the Veteran’s claimed symptoms are the result of major depressive disorder and are independent of any problems related to or diagnosed in service.  The VA examiner further opined that the Veteran’s primary mood disorder developed years after his military discharge and are likely exacerbated by social and medical setbacks that aggravated long standing depression.  The VA examiner explained that adjustment disorders generally tend to be relatively short-lived and time-limited.  The Veteran’s symptoms, however, have been profound and unremitting and his clinic presentation is not that of adjustment disorder but more likely the result of his severe post-military depression becoming more exacerbated as a result of life stressors.  Therefore, the VA examiner opined that the Veteran’s current psychiatric disability is unrelated to having been diagnosed with adjustment disorder or personality disorder in service.  The examiner’s opinion is probative, because 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 Veteran submitted a March 2012 report from a VA psychologist diagnosing the Veteran with major depressive disorder, bipolar disorder, panic disorder, psychotic disorder, and adjustment disorder.  The March 2012 report did not identify a nexus for any of the diagnosed psychiatric disabilities.  
The Veteran also submitted a letter from Dr. V.I. stating that the Veteran has been his patient since 2006, and diagnosing the Veteran with Bipolar Disorder type 1, Depression, and PTSD, “by history and personal assessment.”  Dr. V.I. further stated that the Veteran’s PTSD “seems to have been related with patient’s military service per patient report.”  The Board notes that the Veteran submitted multiple copies of Dr. V.I.’s opinion at different times during the period of appeal.  Although the Board has received letters from Dr. V.I. with different dates, the opinion letters are substantially the same.  The Board further notes that this matter was remanded in December 2017 to obtain additional records from Dr. V.I., as the most recent treatment records associated with the claims file are from 2010.  However, the Veteran did not sign and return the VA Form 21-4241a needed to obtain those records.  Instead the Veteran submitted an additional copy of the doctor’s opinion letter dated after the date of the Board’s remand.
The Board finds the opinion of the VA examiner more probative than the opinion of the Veteran’s private physician.  The VA examiner’s opinion is probative, because 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 opinion of Dr. V.I. is less probative than that of the VA examiner because Dr. V.I.’s opinion is solely a recitation of various diagnoses and a bare conclusion without any rationale. The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).
Furthermore, Dr. V.I.’s opinion is insufficient to establish the required correlation between the condition being claimed and a disease, an injury or an event during the Veteran’s military service.  Dr. V.I. opined that the Veteran’s psychiatric disability “seems to have been related” to the Veteran’s active duty service “per patient report.” The United States Court of Appeals for Veterans Claims (Court) has held that saying a condition “could” or “may” be related to something else is tantamount to saying it just as well “could not” or “may not” be related, so, because of this equivocality, an insufficient basis to establish causation. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of “may or may not” is speculative and insufficient to support an award of service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician’s statement that the Veteran “may” have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis also implied “may or may not” and was deemed speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term “could”, or in the moving party’s case, “may” or “possibly”, without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence).  
 

The Board find’s that Dr. V.I.’s opinion (“seems to have been related”) is speculative and insufficient to support an award of service connection.  Consequently, the Board gives more probative weight to the January 2011 VA examiner’s opinion.  As there is no probative medical evidence supporting the Veteran’s claims, the Board must deny service connection for the Veteran’s psychiatric disabilities.

 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Boal, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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