MAJOR DEPRESSIVE DISORDER

Summary

The veteran, who served in the United States Coast Guard from September 1973 to October 1977, appeals the denial of service connection for an acquired psychiatric disorder other than PTSD, specifically including major depressive disorder. The veteran claims this condition stems from an alleged in-service incident in 1974 where he was unable to save three children who drowned. The Board reviewed extensive medical evidence, including service treatment records, Reserve Component records, and post-service treatment records dating back to 2002. The service records were negative for any psychiatric complaints, diagnoses, or treatment, and the separation examination in 1977 was normal. Post-service records showed no psychiatric issues until at least 2002, approximately 25 years after service. The Board found the negative service records and the 25-year gap before post-service treatment to be highly probative against a service connection. While the veteran provided lay statements about the alleged incident and subsequent symptoms, the Board found these claims unsubstantiated by any official records or credible corroboration, noting inconsistencies in the veteran's accounts regarding the incident's details. The Board also noted that a VA examiner in December 2023 opined that the veteran's acquired psychiatric disorder was not due to military service, citing the lack of in-service treatment, the long gap before post-service diagnosis, and attributing the condition to post-military life events like homelessness, divorce, and incarceration. The Board found this opinion competent and credible, outweighing the veteran's claims. Service connection for the acquired psychiatric disorder, including major depressive disorder, was denied.

Rationale

Negative service treatment records for psychiatric complaints or diagnoses.; Normal psychiatric examination at separation from service.; No documented in-service incident of child rescue failure.; No post-service diagnosis or treatment for psychiatric disorder until approximately 25 years after service.; VA examiner opined condition not due to military service, citing post-military life events.; Veteran's lay statements regarding incident and symptoms lacked corroboration and contained inconsistencies.

Full Decision Text

Citation Nr: 24032227
Decision Date: 10/25/24	Archive Date: 10/25/24

DOCKET NO. 07-05 469
DATE: October 25, 2024

ORDER

Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress syndrome (PTSD), to include a major depressive disorder, is denied.

FINDING OF FACT

The most probative evidence of record shows that the Veteran's acquired psychiatric disorders other than PTSD, but to include a major depressive disorder, were not present in servcie or until many years thereafter, are not related to service, and are not related to an incident of service origin.  

CONCLUSION OF LAW

The criteria for an acquired psychiatric disorder other than PTSD, to include major depressive disorder, have not been met.  38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Coast Guard from September 1973 to October 1977.  The Veteran also had an earlier period of service with a Reserve Component.

In July 2009, the Veteran appeared at a hearing before the undersigned Acting Veterans Law Judge (AVLJ); a transcript is associated with the claims file. 

In December 2009, the Board of Veterans' Appeals (Board) reopened and remanded the issue of entitlement to service connection for PTSD.  

In November 2013, the Board denied the Veteran's claim for entitlement to service connection for PTSD.  The Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include a major depressive disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The Veteran appealed the Board's November 2013 decision to the United States Court of Appeals for Veterans Claims (Court).  

In September 2014, the Court issued an order granting a Joint Motion for Remand (JMR) by the parties and vacated and remanded the November 2013 Board decision that denied service connection for PTSD.  

In January 2015, the Board remanded the issues of entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder.  

In August 2016, the Board again denied the Veteran's claim of service connection for PTSD and remanded the claim of service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder, for additional development.  

In July 2019, September 2020, and February 2023, the Board remanded the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder.  

Lastly, the Board notes that since the regional office (RO) issued the most recent supplemental statement of the case (SSOC) in December 2023, the Veteran's place of incarceration (i.e., FCI Seagoville)) filed with the Veterans' Administration (VA) copies of his medical records.  Nonetheless, the Board finds that it may adjudicate the appeal without first obtaining a waiver of  RO review of this evidence or remanding it for the RO's review because it finds that the evidence is not pertinent because it is, in substance, duplicative in documenting the appellant's post-service complaints, diagnoses, or treatment for multiple medical problems, including an acquired psychiatric disorder, starting decades after service with no link to service (i.e., information that is already part of the record).  See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued).  

Post-Remand Compliance

As to post-Remand compliance, the Board finds that the remand development substantially complied with the Remand directives.  See 38 U.S.C. § 5103; Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with
As to post-Remand compliance, the Board finds that the remand development substantially complied with the Remand directives.  See 38 U.S.C. § 5103; Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).  

The Board has reached this conclusion because the post-Remand record shows that in December 2023 the Veteran was afforded an in-person VA examination and the examiner provided the requested etiology medical opinion.  Moreover, the Board finds that the opinion, when taken together with the examination, provides a competent and credible etiology for the Veteran's acquired psychiatric disorders other than PTSD but to include a major depressive disorder.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board has reached this conclusion for the following reasons: because the examiner considered and discussed all the pertinent service medical records; considered and discussed the Veteran's competent lay claims regarding observable symptomatology; provided a reason for rejecting the Veteran's reports of ongoing symptomatology since service; did not rely solely on negative evidence; explained the medical significance of the service treatment records being negative for complaints, diagnoses, or treatment for any psychiatric disorder or symptoms and the post-service treatment records being negative for a psychiatric disorder until 30 years post-service; and because the opinion is supported by medical reasoning which provides a rationale for the conclusions reached.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position).  

As to post-Remand compliance, the Board finds that the remand development substantially complied with the Remand directives because while the appeal was in Remand status the Veteran filed with VA his medical records from his place of incarcerations.  See 38 U.S.C. § 5103A(b); Stegall, supra; D'Aries, supra.

Based on the foregoing, the Board finds no further action is required by it to address this claim.  Therefore, the Board finds that adjudication of this claim may go forward without a further request for examinations or any further records.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").

Given the above, the Board finds that further delay by remanding the appeal to again undertake additional development is not required.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

The Service Connection Claim

The Veteran asserts, in substance, that service connection is warranted for an acquired psychiatric disorder, to include major depressive disorder, because of an alleged incident of failing to save three children who drowned while he was serving in the National Guard.  See February 2024 Appellate Brief.  

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred
 an acquired psychiatric disorder, to include major depressive disorder, because of an alleged incident of failing to save three children who drowned while he was serving in the National Guard.  See February 2024 Appellate Brief.  

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA).  38 U.S.C. §§ 101(24), 106, 1110, 1131.

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d).  ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State.  38 C.F.R. § 3.6(c)(3).

In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  VA shall consider all information and medical and lay evidence of record.  

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  Id; see also Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021) (en banc).

Initially, the Board notes that the Veteran's DD 214 show he was a boatswain mate.

The Board also finds that the Veteran is competent and credible to report on what comes
 the laws administered by VA.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  VA shall consider all information and medical and lay evidence of record.  

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  Id; see also Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021) (en banc).

Initially, the Board notes that the Veteran's DD 214 show he was a boatswain mate.

The Board also finds that the Veteran is competent and credible to report on what comes to him via his own senses including observable adverse symptomatology and events in service.  See Davidson, supra.

Moreover, as to the first criteria for establishing service connection (i.e., a current disability), the Veteran underwent a December 2023 VA examination and was diagnosed with unspecified depressive disorder and alcohol use disorder (AUD), in sustained remission in a controlled environment (prison).  Therefore, the first element of service connection has been met because the Veteran has a current disability. 

For the second element of service connection, the Veteran must show evidence of an in-service incurrence under 38 C.F.R. § 3.303(a).  The Board notes that the Veteran's active duty and Reserve Component treatment records, including his August 1973 entrance examination and June 1977 separation examination from active duty, are negative for any history, complaints, injury, diagnoses, or treatment for any psychiatric disorder including a major depressive disorder.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  

Most importantly, not only do the service and Reserve Component treatment records not document treatment or complaints for any acquired psychiatric disorder other than PTSD, including a major depressive disorder, or any psychiatric symptoms attributed to any acquired psychiatric disorder other than PTSD, including a major depressive disorder, but they are negative for an incident of retrieving a drowning child/children during active service.  Id.  VA has gone to great lengths to corroborate any such incident and no such records of the incident were found.  

The Board also finds it significant that when examined for separation from active duty in June 1977 the examiner opined that his psychiatric examination was normal, and this medical opinion is not contradicted by any other medical evidence of record.  Id. 

In this regard, the Board finds that the detailed service records, which document the Veteran's complaints, diagnoses, or treatment for other problems, weighs against his claim that his current acquired psychiatric disorder stems from an incident while on active duty almost 50 years ago where he was unable to save a child/children who drowned.  See Owens, supra.

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty or an injury while serving with a Reserve Component that caused his post-service acquired psychiatric disorder other than PTSD, to include a major depressive disorder, despite his claims to the contrary and despite his being a boatswain mate in the Cost Guard.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a).  

In reaching the above conclusion, the Board has not overlooked the Veteran's claim that confirmation of an in-service stressor is only needed for a claim of PTSD under 38 C.F.R. § 3.304 and not needed for a claim for other acquired psychiatric disorders under 38 C.F.R. § 3.303. The Board also acknowledges the Veteran's assertion that lay evidence without support of official records can establish service connection.  Sheets v. Derwinski, 2 Vet. App. 512, 514-15 (1992).  

However, and as discussed above, the Board is finding that the Veteran does not meet the criteria for service connection under 38 C.F.R. § 3.303(a) because it finds that the negative service treatment records, which neither document complaints, diagnoses, or treatment for any acquired psychiatric disorder or the claimed rescue, as well as show that his psychiatric examination was normal when he separated from service, are more probative that the appellant's lay claims to the contrary.  See Owen, supra. 

As to service connection for an acquired psychiatric disorder other than PTSD, but including a major depressive disorder, based on the presumptions found at 38 C.F.R. § 3.309(a), the Board notes that the record is negative for medical records generated in the first post service year
 finding that the Veteran does not meet the criteria for service connection under 38 C.F.R. § 3.303(a) because it finds that the negative service treatment records, which neither document complaints, diagnoses, or treatment for any acquired psychiatric disorder or the claimed rescue, as well as show that his psychiatric examination was normal when he separated from service, are more probative that the appellant's lay claims to the contrary.  See Owen, supra. 

As to service connection for an acquired psychiatric disorder other than PTSD, but including a major depressive disorder, based on the presumptions found at 38 C.F.R. § 3.309(a), the Board notes that the record is negative for medical records generated in the first post service year showing the Veteran being diagnosed with a psychosis.  

Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for any acquired psychiatric disorder other than PTSD but including a major depressive disorder.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307.

Next, the Board will consider whether the Veteran is entitled to service connection for any acquired psychiatric disorder other than PTSD but including a major depressive disorder due to continuity of symptomatology under 38 C.F.R. § 3.303(b).

In this regard, the Board notes that the post-service record does not show that the Veteran had a continued acquired psychiatric disorder other than PTSD but including a major depressive disorder in and since active duty ended nearly 50 years ago.  See Owens, supra. 

In fact, as noted above, the Veteran's service and Reserve Component treatment records, including the June 1977 separation examination, are negative for an injury, history, complaints, diagnoses, or treatment for any acquired psychiatric disorder, the psychiatric examination on his separation from active duty in 1977 was normal, and these medical records are not contradicted by any other medical evidence of record at the time.  See Colvin, supra.

Likewise, and as important, the post-service records are negative for any history, complaints, diagnoses, or treatment for any acquired psychiatric disorder other than PTSD, but including a major depressive disorder, until, at the earliest, 2002; at least 25 years after his 1977 separation from active duty.  See May 2002 VA treatment record.    

In this regard, the Board finds it significant that there are no pre-2002 medical records reporting a history and/or diagnosis of a psychiatric condition.  See Colvin. supra.

Given this record, the Board finds that the evidence in the form of the service medical records and the post-service medical records provides highly probative evidence, each, overall, against the claim.  See Owens, supra.  Moreover, the Board finds this evidence more probative than any claim by the Veteran of having observable symptoms of any acquired psychiatric disorder other than PTSD, but including a major depressive disorder, since active duty ended nearly 50 years ago and/or an incident of one or three children drowning where the Veteran was unable to save the children, causing his present psychiatric condition.  Id.

Regarding any contention from the Veteran that he had continued problems since service, even though they were not documented in his medical records until, at the earliest, 25 years after service ended; in light of a detailed review of the record the Board finds this contention would not reflect the accuracy of the etiology of his psychiatric condition.  Id; Also see Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition).  

The records in this case, both during service and, as importantly, after service, are detailed and the Board cannot, unfortunately, ignore this lack of evidence.

Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with any acquired psychiatric disorder other than PTSD, including a major depressive disorder, in and since his active-duty service ended in 1977 despite his claims to the contrary and despite his being a boatswain mate in the Cost Guard.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b).  The facts of this case provide highly probative evidence against the claim based on a continuity of symptomatology.

Lastly, the Board will consider whether the Veteran is entitled to service connection for any acquired psychiatric disorder other than PTSD, including a major depressive disorder, due to a nexus between the post-service condition and his military service.  See 38 U.S.C. §§ 101,
 a major depressive disorder, in and since his active-duty service ended in 1977 despite his claims to the contrary and despite his being a boatswain mate in the Cost Guard.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b).  The facts of this case provide highly probative evidence against the claim based on a continuity of symptomatology.

Lastly, the Board will consider whether the Veteran is entitled to service connection for any acquired psychiatric disorder other than PTSD, including a major depressive disorder, due to a nexus between the post-service condition and his military service.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d).  

In this regard, the Board also finds that the most probative evidence of record shows that the Veteran's post-service acquired psychiatric disorder other than PTSD, including a major depressive disorder, are not due to his military service.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).

The Board has reached this conclusion because the records shows that the Veteran underwent a December 2023 in-person VA mental health examination and that examiner opined that his current acquired psychiatric disorder, other than PTSD, were not due to his military service.  Moreover, the Board finds this VA examiner's opinion both competent and credible as well as the most probative evidence of record for the following reasons.  First, the examiner thoroughly reviewed the Veteran's records and spoke to him personally to gather lay statements.  The Veteran denied childhood history and military history of mental health diagnoses or treatment.  The Veteran reported that he began treatment for depression/suicidal ideology with VA in 2002 and it continued through 2015 when he was imprisoned.  His records show he was psychiatrically hospitalized in August 2004.  See August and October 2004 VA treatment records.  The examiner also noted that records show he reported alcohol use every day in June 2002, was discharged from CWT program due to positive alcohol use in December 2004 and told the examiner his longest sobriety was eight months in the 1990's when he was homeless and did not have continuous access to money.  The examiner noted he did not meet the criteria for PTSD/depression in the first post year after service.  While going through the PTSD examination, the Veteran reported that his stressor consists of a failed rescue of three children while stationed in 1974 in Wisconsin.  However, the examiner noted that records reflect no evidence of this incident after investigation of such.  The examiner also concluded that his depression stems from incarcerations, homelessness.  The examiner concluded there was no nexus to his military service because he had no diagnosis or treatment in service nor until 2004, nearly 30 years after service, and had held long-term employment and was promoted at his work.  

Given the above, the Board finds that the most probative evidence of record shows that the Veteran's post-service acquired psychiatric disorder other than PTSD, including a major depressive disorder, are not due to his military service.  See Owens, supra.  The Board gives more probative weight to the VA examiners who thoroughly reviewed the Veteran's record, spoke with the Veteran, and concluded his depression, first shown in March 2002, 25 years after service, is not due to his military service.  While he has sustained sobriety and at times due to incarceration, the December 2023 VA examiner cited literature explaining the relationship between alcohol and depression.  Also, while the Veteran's depression currently is not due to alcohol because of his imprisonment, the VA examiners cited post-military life events such as homelessness, divorce, and imprisonments that were causing his depression.  Also, the Veteran's argument through his representative in respect to lay evidence misses the fact that he must provide evidence and, in this case, after exhaustive research, the record reflects no evidence of an event or incident of the Veteran being unable to rescue one child, or three children, in Wisconsin, or Michigan.  The Veteran's argument appears to ask the Board to accept his report of a failed rescue involving one child or three.  While there may have been many rescues and/or attempted rescues from the water as a Coast Guard Boatswain, there is no evidence of the Veteran's involvement in such a rescue attempt resulting in the death of one child or children.
 homelessness, divorce, and imprisonments that were causing his depression.  Also, the Veteran's argument through his representative in respect to lay evidence misses the fact that he must provide evidence and, in this case, after exhaustive research, the record reflects no evidence of an event or incident of the Veteran being unable to rescue one child, or three children, in Wisconsin, or Michigan.  The Veteran's argument appears to ask the Board to accept his report of a failed rescue involving one child or three.  While there may have been many rescues and/or attempted rescues from the water as a Coast Guard Boatswain, there is no evidence of the Veteran's involvement in such a rescue attempt resulting in the death of one child or children.  At the very least, these inconsistent/contradictory statements of the place of the event, and number of children involved, reduce the overall reliability of the assertions.  See State v. Spadafore, 220 S.E. 2d 655, 661 (W. Va. 1975) (observing that, when evaluating inconsistent or contradictory testimony, "[t]he fact that [a witness] has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.").

While the Board acknowledges the sad event in the Veteran's life at age 10, being allowed alcohol from an early age with no restrictions, where his journey has led, and a life where those things have surely made their mark deeply in the Veteran's mind, there is simply no nexus between his acquired psychiatric condition to his military service.  In fact, on separation from active service, his June 1977 separation examination reflects no evidence of any diagnosis or treatment of any mental condition.  Also, despite reporting that his parents gave him alcohol starting at six months old and the loss of his mother at age 47, he reported "my home life was good."  See December 2023 VA examination.  VA examinations and VA records also indicate he reported getting his GED, being trained in auto mechanics, carpentry, and operating a telephone installation business prior to his 2001 incarceration, gaining a promotion at a fast-food restaurant, longterm employment as a truck driver for seven years, and manager of an apartment complex.  See e.g., March and May 2002 VA treatment records, December 2023 VA examination report.  The Board also acknowledges the hardships of homelessness and financial stresses the Veteran has experienced in his life.  However, the Board cannot ignore that post-military life for 25 years indicates no issues with an acquired psychiatric condition that were due to military service.

In reaching the above conclusion, the Board has not overlooked the fact that the Veteran's post-service treatment records include claims that his current acquired psychiatric disorder are due to his military service.  Specifically, in May 2002 he reported that he brought back dead bodies to the boat and had nightmares about the people he failed to rescue.  He has attributed his psychiatric condition to not being able to save three drowning children while he was stationed in Michigan, although he has also stated it was one child, and in Wisconsin.  He reported he could not save the life of the child because his wet suit did not allow him to go deep enough to get her in time.  See January 2007 VA treatment record.  In a May 2003 VA treatment record, he reported that he grew up drinking alcohol from six months of age.  However, the Board finds that treatment records which just record an appellant's claims unenhanced by medical reasoning lack probative value.  See Owens, supra.  

The Board also finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to these complex medical questions (i.e., what caused his post-service acquired psychiatric disorder other than PTSD but to include a major depressive disorder).  See Davidson, supra.  

Simply stated, the Veteran cannot diagnose a problem and then associate that problem to a disease or injury (or, as in this case, the contention that he failed to rescue drowning) while on active duty almost 50 years ago (the second part being the most important).  The Veteran is not a health care provider.  Overall, the Board must find that the contention, overall, is based on gross speculation based on service, in general, rather than any type of disease or injury in service almost 50 years ago. 

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's acquired psychiatric disorders other than PTSD, including a major depressive disorder, is not due to his military service despite his claims to the contrary and despite his being a boatswain mate in the Cost Guard.  See 38 U.S.C. §§ 101
 case, the contention that he failed to rescue drowning) while on active duty almost 50 years ago (the second part being the most important).  The Veteran is not a health care provider.  Overall, the Board must find that the contention, overall, is based on gross speculation based on service, in general, rather than any type of disease or injury in service almost 50 years ago. 

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's acquired psychiatric disorders other than PTSD, including a major depressive disorder, is not due to his military service despite his claims to the contrary and despite his being a boatswain mate in the Cost Guard.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra.  

In this regard, the key question in this case is not if the Veteran had a disease or injury while in service (it is possible that the Veteran did, in fact, have a disease or an injury).  The key issue is whether any disease or injury the Veteran had during active duty almost 50 years ago or an injury while serving with a Reserve Component even earlier was at least as likely as not (generally a 50 percent or greater chance) the cause of any of his post-service acquired psychiatric disorders other than PTSD including a major depressive disorder.  

The fact that he may, or may not, have had a disease or injury while on active duty does not always provide the basis to find that a post-service acquired psychiatric disorders other than PTSD is the result of that disease or injury from decades ago.  There are other factors, such as age, wear and tear, and other disease or injuries.  Sometimes, in some cases, the best evidence provides evidence against such claims.  

In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service, that provides highly probative evidence against the claim that clearly outweigh all evidence that supports the claim.  

Lastly, it is vital for the Veteran to understand that the Board has taken his concerns seriously, however, there is now prodigious medical and factual evidence against the claim that the Board cannot ignore.  In this regard, the service and post-service treatment records, as noted above, have been found by the Board to provide highly probative evidence against the claim and either one of which, standing alone, provide a valid basis to deny the claim.  There is no basis to assume that obtaining additional medical opinions in this case will provide a basis to grant any of the claims in light of this record and the facts of this case.  

In reaching the above conclusions, the Board considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the most probative evidence of record is against the claim (i.e., the evidence for and against the claim is not approximately in balance), the Board finds that the doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Lynch, supra.

 

 

NEIL T. WERNER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Raborn, Susan M.

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.