MAJOR DEPRESSIVE DISORDER

Summary

The Veteran, a US Navy Veteran who served from December 1965 to October 1969, appeals the denial of service connection for an acquired psychiatric disability, claimed as depression, and for this disability to be considered secondary to his service-connected Osgood-Schlatter disease of the left knee. The Veteran contends his psychiatric condition is a result of or aggravated by his knee condition, which he believes has made a normal life impossible. The Board reviewed the Veteran's service treatment records, which showed no psychiatric abnormalities upon entry but noted considerable mental stress in 1967. Post-service, the Veteran received multiple diagnoses of major depressive disorder (MDD) and related conditions, with symptoms dating back to the 1980s and a history of suicide attempts and hospitalizations. Multiple VA examinations were conducted, with examiners consistently finding the Veteran's MDD to be less likely than not related to service or proximately due to his Osgood-Schlatter disease. Examiners noted the multifactorial nature of the Veteran's depression, citing familial, financial, and social stressors, including his son's incarceration and deaths in the family, as primary contributors. They also noted that the Veteran's psychiatric treatment predated his knee condition and that his knee pain did not appear to worsen his depression. The Board found the Veteran's contention of a link between his depression and knee disability not credible, given the consistent attribution of symptoms to other factors and the lack of contemporaneous evidence supporting such a link. The Board concluded that the evidence persuasively weighed against service connection, finding the Veteran's acquired psychiatric disability was not caused by, aggravated by, or otherwise related to service or his service-connected knee condition. Service connection for the acquired psychiatric disability was denied.

Rationale

No evidence of in-service onset or manifestation of psychiatric symptoms.; No clear connection between left knee disability and psychiatric symptoms.; Depression symptoms predated service-connected knee condition and were multifactorial.

Full Decision Text

Citation Nr: 22045211
Decision Date: 08/09/22	Archive Date: 08/09/22

DOCKET NO. 15-21 638
DATE: August 9, 2022

ORDER

Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected Osgood-Schlatter disease of the left knee, is denied.

FINDING OF FACT

The evidence weighs persuasively against finding that the Veteran's acquired psychiatric disability began during active service, manifested within a year of separation from service, was caused or aggravated by his service-connected Osgood-Schlatter disease of the left knee, or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected Osgood-Schlatter disease of the left knee, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the US Navy from December 1965 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a VA Regional Office (RO).

This matter was previously before the Board in March 2019, July 2021, and February 2022. Generally, the Board's remands have sought additional development of the record, including seeking a VA opinion regarding whether the Veteran's acquired psychiatric disability has been aggravated by his left knee disability. The Board finds that there has been substantial compliance with the prior remands, and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998).

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

Generally, service connection may be granted if the evidence demonstrates that a veteran's current disability resulted from an injury or disease incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish entitlement to service connection for any disability, 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).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either proximately (a) caused or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Additionally, service connection for psychiatric disabilities also requires, in addition to showing competent evidence as described above, a diagnosis specifically conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 U.S.C. § 1131; 38 C.F.R. § 3.303; see also Shedden, 381 F.3d at 1167. All elements must be satisfied before service connection may be granted. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (holding that although in other contexts the definition of "disability" may not be limited to a diagnosis, with respect to psychiatric disabilities, VA has expressly limited compensation to disabilities with a valid DSM-5 diagnosis); see also 38 C.F.R. § 4.125.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of their current symptomatology. See Layno v. Brown, 6 Vet. App
den, 381 F.3d at 1167. All elements must be satisfied before service connection may be granted. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (holding that although in other contexts the definition of "disability" may not be limited to a diagnosis, with respect to psychiatric disabilities, VA has expressly limited compensation to disabilities with a valid DSM-5 diagnosis); see also 38 C.F.R. § 4.125.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of their current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781.

1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected Osgood-Schlatter disease of the left knee, is denied.

The Veteran contends that his current acquired psychiatric disability, claimed as depression and manifested by symptoms of depressed mood, anxiety, anhedonia, and other symptoms, is the result of his service-connected Osgood-Schlatter disease of the left knee. The Veteran contends that his Osgood-Schlatter disease has made it impossible for him to have a "normal life."

In a December 1965 Report of Medical Examination (ROME), conducted upon the Veteran's entry into service, the service examiner identified no psychiatric abnormalities. In a contemporaneous Report of Medical History (ROMH), the Veteran stated that he had no history of frequent sleep trouble, nightmares, depression or excessive worry, or nervous trouble, and no family history of suicide or insanity.

In a November 1967 service treatment record, the Veteran reported experiencing "considerable mental stress related to [his] girlfriend, grandparents, and division." This stress was characterized as "[n]othing incapacitating."

In an April 1969 ROMH, the Veteran reported a history of frequent sleep trouble, nightmares, depression or excessive worry, and "nervous trouble[.]" In a September 1969 ROME, conducted prior to the Veteran's discharge from service, the service examiner identified no psychiatric abnormalities.

In February 2004, the Veteran's private physician submitted a statement regarding his physical health in support of an application for state disability compensation via Retirement Systems of Alabama. The physician opined that the Veteran was "totally incapacitated for further performance" of his occupational duties as a maintenance painter, due to multiple conditions. Among the conditions listed, the physician noted that the Veteran experienced depression, characterized as "situational [and secondary] to multiple medical problems and chronic pain."

In a May 2004 VA primary care outpatient note, the VA physician stated that the Veteran reported feeling depressed, which he related to "being forced into early retirement due to multiple medical problems [and] financial problems." The physician noted the Veteran's reports of chronic low back pain, bilateral knee pain, and bilateral shoulder pain, and that he denied suicidal or homicidal ideation.

A May 2005 VA psychiatry note detailed the Veteran's mental health history prior to his initiation of VA care. The Veteran's diagnosis of major depressive
 as a maintenance painter, due to multiple conditions. Among the conditions listed, the physician noted that the Veteran experienced depression, characterized as "situational [and secondary] to multiple medical problems and chronic pain."

In a May 2004 VA primary care outpatient note, the VA physician stated that the Veteran reported feeling depressed, which he related to "being forced into early retirement due to multiple medical problems [and] financial problems." The physician noted the Veteran's reports of chronic low back pain, bilateral knee pain, and bilateral shoulder pain, and that he denied suicidal or homicidal ideation.

A May 2005 VA psychiatry note detailed the Veteran's mental health history prior to his initiation of VA care. The Veteran's diagnosis of major depressive disorder (MDD) was described as recurrent, with occasionally severe symptoms and occasional manifestation of psychosis. Onset was in 1980, with a month-long hospitalization in 1983 that included treatment via electroconvulsive therapy (ECT). The Veteran also attempted suicide once in the 1990s, via drug overdose. With respect to his mental state, the VA physician indicated that the Veteran was not focused on physical pain. The physician provided diagnoses of 1) depressive disorder not otherwise specified, characterized as severe, recurrent MDD without psychotic features and mood disorder due to medical condition; 2) panic disorder without agoraphobia; and 3) pain disorder associated with psychological factors. Relevant physical conditions were chronic back pain, diabetes with neuropathy, hypertension, dyslipidemia, obesity, gastroesophageal reflux disorder, hiatal hernia, and seizure disorder.

In an October 2007 VA mental health note, the Veteran reported symptoms of anhedonia, fatigue, and shortness of breath. The Veteran was experiencing increased back pain, rated as an 8-9 on a ten-point scale. The VA psychiatrist provided a diagnosis of MDD, recurrent, mild to moderate. Physical conditions relevant to the Veteran's diagnosis were hypertension, diabetes, heart disease, obstructive sleep apnea (OSA), obesity, chronic low back pain and shoulder pain, carpal tunnel syndrome, hiatal hernia, seizure disorder, and hyperlipidemia. Additionally, the VA psychiatrist noted the Veteran had severe ongoing psychosocial stressors impacting his mental health, including loss of regular contact with his grandson, separation from his wife, grief over the deaths of his mother and first wife, his son nearly dying the previous year, and his multiple medical problems.

In a January 2012 VA mental health note, the Veteran reported experiencing anxiety and panic attacks with shortness of breath, racing heartbeat, loss of appetite, and fatigue. The Veteran stated that his symptoms began a month prior when his son came under criminal investigation, continuing after his arrest the week prior. The Veteran reported his pain level as a 0 on a 10-point scale. The diagnoses provided were of adjustment disorder and bereavement related to the deaths of his wife and mother, exacerbated by his overall medical problem list and severe family stressors. In a contemporaneous VA primary care outpatient note, the Veteran was described as "emotionally distraught and anxious regarding some family issues[,]" and that he had previously been doing well coping with "underlying depression and anxiety."

In a January 2013 VA mental health note, the Veteran reported that he felt a lot of sadness and anxiety related to his son, who had recently been sentenced to a 20-year term in prison and had Crohn's disease. He reported isolation or minimal contact with two half siblings and one cousin.

The Veteran was afforded a VA mental disorders examination in November 2016. The VA examiner noted the Veteran's diagnosis of MDD, as well as additional relevant diagnoses of Osgood-Schlatter disease, chronic back pain, type II diabetes, neuropathy, chronic ischemic heart disease, and high blood pressure. The Veteran reported having a "great" relationship with his wife, and that his son's incarceration was "hard to handle" because he had no other family. He stated he could go "weeks at a time" without leaving home and avoided going out in public because he felt judged for his son's situation. The Veteran also stated he had "a couple" of friends, but that he occasionally wished to be alone. He had stopped hunting and fishing after his grandfather's death years prior, and had given up metal detecting "secondary to his knee problems." The Veteran also reported that he had retired in March 2004 on the recommendation of his private physician, who had told him that "his various medical problems (e.g. high blood pressure, diabetes) would create problems for him[.]"

The VA examiner opined that the Veteran's MDD was less likely than not incurred in or caused by his service, explaining that the Veteran's service treatment records did not evidence psychiatric treatment and that the he had reported his own symptoms did not manifest
's situation. The Veteran also stated he had "a couple" of friends, but that he occasionally wished to be alone. He had stopped hunting and fishing after his grandfather's death years prior, and had given up metal detecting "secondary to his knee problems." The Veteran also reported that he had retired in March 2004 on the recommendation of his private physician, who had told him that "his various medical problems (e.g. high blood pressure, diabetes) would create problems for him[.]"

The VA examiner opined that the Veteran's MDD was less likely than not incurred in or caused by his service, explaining that the Veteran's service treatment records did not evidence psychiatric treatment and that the he had reported his own symptoms did not manifest prominently until the 1980s. The examiner also opined that the Veteran's MDD was less likely than not proximately due to or the result of his service-connected Osgood-Schlatter disease, explaining that the Veteran's depression was "multifactorial" and that he had been negatively impacted by several stressors, including his first wife's death, marital difficulties with his second wife, his son's medical and legal problems, and personal financial issues. The examiner found no "clear connection" between the Veteran's depression and his knee disability.

In a February 2017 VA mental health note, the Veteran reported feeling "more down lately[,]" with depressed mood, increased anxiety, and little to no motivation. The Veteran stated he did not enjoy going into town because he felt he was being judged for his son's incarceration; he also felt that his family had abandoned him.

In an April 2019 VA mental health note, the Veteran reported feeling "more down and anxious[,]" which he attributed in part to recent stent placement for his heart, and in part to a skin condition for which he received ongoing treatment.

In October 2019, the Veteran was afforded another VA mental disorders examination. The VA examiner provided a diagnosis of recurrent MDD, characterized as mild with anxious distress. The Veteran reported symptoms of irritability, feelings of sadness and hopelessness, isolation from family, friends, and others, anhedonia, loss of motivation, and increased anxiety with a tendency to worry. He denied suicidal ideation but described having made a "suicidal gesture" in 1970, following his discharge from service; the VA examiner associated the Veteran's psychiatric hospitalization with this 1970 suicidal gesture. He also stated that his depression symptoms had been present since his adolescence.

The VA examiner opined that the Veteran's MDD was less likely than not proximately due to or the result of his Osgood-Schlatter disease, noting the Veteran's report that his depression pre-dated his service and stating that the Veteran's record was "silent for diagnosis or treatment for depression in proximal relationship" to his knee disability. The examiner stated that the Veteran's depression was "clearly a pre-existing condition." The VA examiner also opined that the Veteran's MDD was less likely than not proximately due to or the result of his Osgood-Schlatter disease, explaining that his MDD was mild, had been consistent over time, and had not exacerbated since discharge from service.

The Veteran was again afforded a VA mental disorders examination in November 2021. The Veteran's diagnosis of recurrent MDD was characterized as moderate with anxious features, manifesting as "[o]verwhelming anxiety [two to four] times monthly." The Veteran felt shame over his son's incarceration and sought to avoid "anyone who may ask him about this." He reported he had experienced psychiatric symptoms since the 1980s, when he was hospitalized. The Veteran had additional relevant diagnoses of Barrett's esophagus, diabetes, chronic low back pain, and coronary artery disease (CAD). The Veteran reported heightened anxiety over a "tad of cancer in his esophagus" and over cardiac issues, helplessness over unsuccessful efforts to lower his blood sugar, and an increase in dysphoria and worry due to pain.

The VA examiner opined that the Veteran's MDD was less likely than not proximately due to or the result of his Osgood-Schlatter disease, noting the Veteran's reports of depression symptoms beginning in the 1980s, a family history of depression, multiple contributory situational and familial stressors, and contributory health issues "such as chronic back pain, diabetes, and [CAD]." The examiner found no connection between the Veteran's knee disability and his depression, and stated that the Veteran did not report any connection.

An addendum VA opinion was provided in March 2022. The VA examiner stated that a baseline level of severity for his psychiatric disability could be established, noting that the Veteran had no signs of depression prior to service, with notes indicating depressive symptoms in 1967 and 1969. The examiner stated that the Veteran's E
 Osgood-Schlatter disease, noting the Veteran's reports of depression symptoms beginning in the 1980s, a family history of depression, multiple contributory situational and familial stressors, and contributory health issues "such as chronic back pain, diabetes, and [CAD]." The examiner found no connection between the Veteran's knee disability and his depression, and stated that the Veteran did not report any connection.

An addendum VA opinion was provided in March 2022. The VA examiner stated that a baseline level of severity for his psychiatric disability could be established, noting that the Veteran had no signs of depression prior to service, with notes indicating depressive symptoms in 1967 and 1969. The examiner stated that the Veteran's ECT treatment in 1983 constituted an "aggressive treatment for depression[.]" The VA examiner stated that the Veteran's current symptoms were not greater than his baseline.

The examiner opined that it was less likely than not that the Veteran's depression and associated symptoms had been aggravated by his left knee disability. The examiner noted that the Veteran's history of reports depressive symptoms did not carry any associated or indicated cause until his 2004 report of depression due to being forced into retirement. The examiner noted that while the Veteran also reported extreme financial burdens, his son's legal issues, and problems with the Veteran's marriage, he did not report any complaints regarding his knee in relation to his psychiatric symptoms. The examiner emphasized that the Veteran's hospitalization, ECT treatment, and medication for depression predated his knee condition, and that it had not added symptoms of depression which were worse than those already present.

The Board finds that the most persuasive evidence of record weighs against finding that service connection is warranted for the Veteran's acquired psychiatric disability, to include on either a direct or secondary basis. While the evidence supports that the Veteran has a current diagnosis of MDD, it does not support that his MDD began in or within a year of separation from service, was caused by an in-service injury or incident, was worsened beyond its natural progression by any service-connected disability, or is otherwise related to service.

The Board recognizes, at the outset, that the Veteran's claim has been repeatedly remanded by the Board following VA examinations which either failed to provide an opinion regarding the possibility of aggravation, or which failed to provide an adequate rationale in support of their findings. The Board notes, however, that while the October 2019 VA opinion was deemed inadequate for adjudicative purposes, and the November 2016 and November 2021 VA opinions failed to opine regarding service connection on the basis of aggravation, these opinions still possess at least some probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains").

Furthermore, the Veteran's VA treatment records supplement and broadly confirm the conclusions of the VA opinions of record and include acknowledgement of the Veteran's lay statements regarding his symptoms. Given the totality of the evidence of record, including the VA examinations and opinions, the Veteran's history of diagnoses and treatment, and his own lay descriptions describing the frequency, cause, and nature of his symptoms, the Board finds that the evidence of record is, on the whole, adequate to decide the Veteran's claims.

The Board also acknowledges the Veteran's belief that his acquired psychiatric disability manifests as secondary to his Osgood-Schlatter disease of the left knee, either as a direct cause or as having been aggravated by the knee disability. The Veteran is competent to report the onset and continuity of his psychiatric symptoms, including any relationship he feels exists between those symptoms and his left knee. See Layno v. Brown, 6 Vet. App. 465, 469(1994).

However, the Veteran is not similarly credible in establishing such a relationship. While competency is a threshold legal concept that pertains to whether a particular piece of proffered evidence can even be considered by the factfinder, credibility pertains to the believability and weight of such evidence as assigned by the trier of fact. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). If evidence is not competent, it cannot be considered as evidence by the factfinder. Id. However, the mere fact that evidence is deemed competent does not mean that it must be found persuasive of a particular fact. See id. If evidence is found to be competent, it is for the Board to determine what, if any, probative value to assign to that evidence. See Washington v. Nicholson, 19 Vet. App. 362
 a particular piece of proffered evidence can even be considered by the factfinder, credibility pertains to the believability and weight of such evidence as assigned by the trier of fact. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). If evidence is not competent, it cannot be considered as evidence by the factfinder. Id. However, the mere fact that evidence is deemed competent does not mean that it must be found persuasive of a particular fact. See id. If evidence is found to be competent, it is for the Board to determine what, if any, probative value to assign to that evidence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (it is the responsibility of the Board to assess the probative weight of the evidence).

In assessing the credibility of evidence, the Board may consider any number of factors, to include conflicting statements or evidence, and the potential bias of the declarant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345 (1999). The lack of contemporaneous evidence is also relevant, but it may not generally serve as the sole basis for discrediting lay statements or testimony. Buchanan, 451 F.3d at 1337.

Here, the Board finds the Veteran's contention that his depression is secondary to his Osgood-Schlatter disease of the left knee because it has made "normal life" impossible to be not credible, given the Veteran's consistent attribution of his symptoms to either circumstantial factors or, when pain is present, to pain caused by conditions which are not service connected, as well as similar findings by the treating VA physicians and the VA examiners of record. Indeed, outside of the Veteran's initial claim, the Board can identify no statements, treatment records, medical opinions, or other evidence, at any point following the Veteran's discharge from service, in which his acquired psychiatric disability is related as having been caused, worsened, or otherwise impacted by his left knee disability. While the Veteran's general or collective physical disabilities have been cited as among the reasons for his continued symptoms of depression and anxiety, at no point has his left knee disability appeared to be at least as likely as not to have precipitated the onset or worsening of associated psychiatric symptoms.

The Board notes that, generally, the Veteran's acquired psychiatric disability and its associated symptoms has been present since at least the 1980s, more than a decade after his discharge from service. The record contains no indication of a relationship between any left knee pain and the onset of his psychiatric symptoms at that time. Following his initiation of treatment with VA, the Veteran's medical conditions are described as exacerbating or precipitating his depressive symptoms, but while his symptoms appear to worsen in response to, for example, his CAD symptoms and treatment or his low back pain, there are no descriptions of his knee pain being a cause of worsening depression. In fact, even while the Veteran's depression remains consistent throughout his history of VA treatment, his pain is regularly described as minimal or absent (e.g. stating that his pain is not a concern, or that it rates a 0 on a 10-point scale) in the context of its impact on his mental health.

Meanwhile, the far more consistent factors precipitating or exacerbating the Veteran's psychiatric symptoms, over the entire period on appeal, have been familial, financial, and social stress, especially relating to the arrest and imprisonment of the Veteran's son, prolonged grief over the deaths of his mother and first wife, and social anxiety. While these circumstances are clearly traumatic for the Veteran, it is also apparent that they are the reason for his current prolonged symptoms of depression and anxiety, as well as their severity. To the extent that the Veteran's physical disabilities have impacted his mental health, there is no evidence that his left knee disability specifically has worsened it to an identifiable degree beyond its natural progression.

The Board also acknowledges the June 2022 written brief presentation provided by the Veteran's representative, in which the representative argues that the VA examiner fails to "adequately identify any conditions that cause the Veteran's symptoms for [the] psychiatric disability condition on appeal and does not adequately address whether the condition on appeal is related to the Veteran's active service." Although the Veteran's representative does not specifically identify which VA examiner has provided an inadequate rationale, the Board observes that the November 2016, November 2019, and March 2022 examiners all identified causes for the Veteran's symptoms, and explained that those symptoms had no clear relationship to his left knee disability. The VA opinions also reflect consideration of the Veteran's lay statements, including those lay statements provided to treating VA physicians in his VA treatment
 presentation provided by the Veteran's representative, in which the representative argues that the VA examiner fails to "adequately identify any conditions that cause the Veteran's symptoms for [the] psychiatric disability condition on appeal and does not adequately address whether the condition on appeal is related to the Veteran's active service." Although the Veteran's representative does not specifically identify which VA examiner has provided an inadequate rationale, the Board observes that the November 2016, November 2019, and March 2022 examiners all identified causes for the Veteran's symptoms, and explained that those symptoms had no clear relationship to his left knee disability. The VA opinions also reflect consideration of the Veteran's lay statements, including those lay statements provided to treating VA physicians in his VA treatment records, in which he describes several precipitating factors other than his left knee disability as impacting his mental health.

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While the Board recognizes, as noted above, that an absence of contemporary evidence may not generally serve as the sole basis on which to discount lay statements or testimony, it also recognizes that it may consider  as evidence weighing against a claim  the absence of a notation of a condition or symptoms where such a notation would normally be expected. See Fed. R. Evid. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan, 451 F.3d at 1337. Given the consistent notation of other factors as contributing to the Veteran's psychiatric symptoms in treatment records in which, if his knee had been impacting those symptoms, it would have likely been mentioned, the Board is persuaded that the Veteran's acquired psychiatric disability was not manifesting as more severe than it would have but for his knee disability.

As the evidence of record weighs persuasively against the Veteran's contention that his acquired psychiatric disability is the result of or has been aggravated by his service-connected Osgood-Schlatter disease, the Board finds that the benefit of the doubt rule is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see Lynch, 21 F.4th 776.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	David A. F. Litvak

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.