MENTAL DISORDERS

MARCUS N. FULTON · 2025 · Case ID: 25006748

MIXED

Summary

The veteran, who served in the U.S. Navy from September 1997 to September 2001, appealed the denial of service connection for an acquired psychiatric disability, specifically depression, which he claimed was secondary to his service-connected migraine headaches, right and left knee patellofemoral syndrome, and obesity. The Board broadened and recharacterized the claim as one for an acquired psychiatric disability. The veteran reported symptoms of depression, lack of motivation, and sleep difficulties, but the medical evidence of record, including multiple VA examinations and screenings, did not yield a diagnosis of depression or any other acquired psychiatric disability meeting DSM-5 criteria. While the veteran's lay testimony was considered competent, the Board found no affirmative evidence establishing credibility for a psychiatric diagnosis. The Board found the July 2024 VA examination adequate, concluding the veteran's symptoms were mild and not clinically significant enough for a diagnosis. Service connection for the acquired psychiatric disability was denied. The issue of service connection for sleep apnea was remanded for a new VA examination and medical opinions to address whether it is secondary to his service-connected migraine headaches, knee conditions, and obesity, including an analysis of the but-for causation and aggravation.

Rationale

No current diagnosis of acquired psychiatric disability; Symptoms reported were mild and not clinically significant; Medical evidence did not meet DSM-5 diagnostic criteria

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-21 797

Full Decision Text

Citation Nr: 25006748
Decision Date: 05/19/25 Archive Date: 05/19/25

DOCKET NO. 20-21 797
DATE: May 19, 2025

ORDER

Service connection for an acquired psychiatric disability is denied.

REMANDED

The issue of entitlement to service connection for sleep apnea is remanded.

FINDING OF FACT

The competent evidence of record demonstrates that the Veteran does not have a current diagnosis of depression or any other acquired psychiatric disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the United States Navy from September 1997 to September 2001.

These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ).

In January 2024, the Board remanded these matters for further evidentiary development. As discussed below, there has been substantial compliance with the Board's remand directives as to the issue adjudicated herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

Additionally, in January 2024, the Board remanded the issues of entitlement to service connection for right and left knee disabilities. Thereafter, the AOJ awarded service connection for patellofemoral syndrome of the right and left knees in an October 2024 rating decision. As the benefits sought on appeal were granted, these claims are no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

Generally, in order to establish service connection, there must be competent and credible evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability that is caused or aggravated by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). In Spicer v. McDonough, the United States Court of Appeals for Veterans Claims (Court), clarified the standard of proof for claims based on a secondary service connection theory of entitlement. 61 F.4th 1360, 1364-65 (Fed. Cir. 2023). In accordance with the Court's holding in Spicer, secondary causation exists when the service-connected disability is the but-for cause of the nonservice-connected disability, which is not limited to a single cause and effect, but rather contemplates multi-causal links. Id. Secondary aggravation may exist when the nonservice-connected disability would be less severe were it not for a service-connected disability, to include where the natural progression not caused by the service-connected disability would have nonetheless been less severe were it not for the service-connected disability. Id. at 1364.

The current disability element is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim" or "when the record contains a recent diagnosis of disability prior to filing a claim for benefits based on that disability." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

Further, the current disability element is satisfied when there is competent evidence establishing that the veteran has symptoms resulting in functional impairment that affect their earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018); see also Larson v. McDonough, 10 F.4th 1325, (Fed. Cir. 2020) (a "disability" for 38 U.S.C. § 1110 purposes is distinct from and not coextensive with the disabilities listed on the rating schedule). However, symptoms causing functional impairment are not sufficient to meet the current diagnosis requirement for an acquired psychiatric disability as VA has expressly limited compensation for an acquired psychiatric disability to those diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM). See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 395 (2020); see also 38 C.F.R. § 4.125 (requiring a diagnosis in accordance with the DSM-5).

Ordinarily, a lay person is competent to report symptoms and experiences observable by their senses; however, they are not usually competent to prove a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994).

The issue of entitlement to service connection for an acquired psychiatric disability.

As a preliminary matter, the Board has broadened and recharacterized the Veteran's claim for service connection for depression as one for an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran contends that he has depression due to his service-connected migraines headaches. See June 2018 VA Form 21-526b, Veteran's Supplemental Claim for Compensation. In the alternative, the Veteran asserts that he has depression due to his claimed sleep apnea. See June 2019 VA Form 21-0958, Notice of Disagreement.

Regardless of the theory of entitlement raised, absent proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In that regard, the Veteran reports symptoms of chronic sleep problems, depression, and helplessness, which he attributes to his claimed depression. November 2017 VA Form 21-4138, Statement in Support of Claim. However, as noted above, for VA compensation purposes symptoms causing functional impairment are not sufficient to meet the current diagnosis requirement for an acquired psychiatric disability. See Martinez-Bodon, 32 Vet. App. at 395. Rather, there must be evidence of a current diagnosis in accordance with the DMS-5 diagnostic criteria. See 38 C.F.R. § 4.125. Thus, while the Veteran is competent to describe the psychiatric symptoms he experiences, he is not competent to diagnose an acquired psychiatric disability as it requires specialized medical training and knowledge to determine whether his symptoms meet the DSM-5 diagnostic criteria. For this reason, the Board must rely on the medical evidence of record.

A review of the medical evidence of record shows sporadic reports of psychiatric symptoms by the Veteran, such as depression and anxiety; however, it is negative for a diagnosis of depression, anxiety, or any other acquired psychiatric disability. For instance, even though a November 2010 VA Primary Care Note documented the Veteran's report that others have told him that he has been depressed, at that time, the VA treatment provider did not include any diagnosis of an acquired psychiatric disability among the list of his active problems. Although a December 2019 VA Primary Care Note recorded his report of being intermittently depressed, the VA treatment provider's assessments did not include any diagnosis of an acquired psychiatric disability. The same is true in an August 2022 VA Primary Care Note.

Further, during depression screenings in June 2013 and December 2020 the Veteran reported having little interest or pleasure in doing things for several days and feeling down, depressed, or hopeless for several days. See June 2013 VA Preventative Medicine Note; December 2020 VA Preventative Medicine Note. Significantly, in both instances, the screening score of two resulted in a negative screen for depression.

The Veteran was afforded VA mental disorders examination in March 2016. During that examination, he relayed that he
Care Note recorded his report of being intermittently depressed, the VA treatment provider's assessments did not include any diagnosis of an acquired psychiatric disability. The same is true in an August 2022 VA Primary Care Note.

The Veteran was afforded VA mental disorders examination in March 2016. During that examination, he relayed that he did not feel as if he was depressed, but that his family and friends have told him that he was in the past. The VA examiner noted that a review of his VA treatment records showed periods of time when he has endorsed symptoms of depression. Nevertheless, upon examination, the VA examiner found that he demonstrated no symptoms attributable to an acquired psychiatric disability. Thus, the VA examiner determined that he did not have a current diagnosis of an acquired psychiatric disability.

In January 2024, the Board remanded this claim to obtain another VA examination upon finding that new and material evidence had been received since the claim was previously denied in a March 2016 rating decision. The Board directed the AOJ to schedule the Veteran for an examination and to obtain medical opinions addressing direct and secondary service connection theories of entitlement. Pursuant to the Board's directives, the Veteran underwent a July 2024 VA mental disorders examination and medical opinions addressing direct and secondary service connection theories of entitlement were also obtained in July 2024.

As a part of the July 2024 VA examination, the VA examiner conducted an in-person review and indicated having reviewed the Veteran's electronic claims folder. During the VA examination, the Veteran reported that he often lacked motivation, has difficulty getting out of bed some days, has difficulty completing simple household tasks, and tends to self-isolate. He also relayed experiencing frequent headaches and sleep apnea. He denied ever receiving mental health treatment nor taking any psychotropic medication. Upon examination, the VA examiner assessed his symptoms were mild and not clinically significant. More importantly, the VA examiner determined that the minimum DSM-5 criteria for a mental health diagnosis had not been met. In the associated medical opinions, the VA examiner explained that there was no pathology to warrant a diagnosis.

In a December 2024 appellate brief, the Veteran's representative stated that the symptoms reported by the Veteran during the July 2024 VA examination were all common symptoms of depression and contended that the July 2024 VA examination was inadequate because the VA examiner failed to see how the symptoms reported during the examination clearly point towards a depressive condition. The Veteran's representative took issue with the VA examiner's rationale, stating it only amounted to a factual statement.

There is no evidence of record demonstrating that the Veteran's representative has the necessary medical expertise to diagnose an acquired psychiatric disability. More importantly, even if they were competent to do so, they may not serve as an expert witness while also serving as the Veteran's representative. See Harvey v. Shulkin, 30 Vet. App. 10 (2018).

As to the adequacy of the July 2024 VA examiner's findings, the Board finds that it is adequate for adjudication purposes. The VA examiner, a Doctor of Psychology, completed a review of the records and conducted an in-person examination, based upon that, they determined that the Veteran did not meet the minimum diagnostic criteria for a diagnosis of an acquired psychiatric disability. In doing so, they explained that his psychological symptoms are mild and not clinically significant enough to meet the DMS-5 diagnostic criteria for a mental health diagnosis. Moreover, the VA examiner's findings are consistent with the other medical evidence of record, which similarly show reports of psychiatric symptoms which did not result in any diagnosis of an acquired psychiatric disability. Therefore, the Board finds the July 2024 VA examiner's finding not only adequate but probative as well.

Considering the above, the Board finds that the competent evidence of record persuasively weighs against demonstrating that the Veteran has a current diagnosis of an acquired psychiatric disability. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Accordingly, service connection for an acquired psychiatric disability is denied.

REASONS FOR REMAND

The issue of entitlement to service connection for sleep apnea.

In January 2024, the Board also remanded this issue to afford the Veteran another VA sleep apnea examination and to obtain medical opinions addressing whether his current diagnosis of obstructive sleep apnea is secondary to his claimed acquired psychiatric disability. Pursuant to the Board's remand, a VA examination and medical opinions were obtained in July
evidence of record persuasively weighs against demonstrating that the Veteran has a current diagnosis of an acquired psychiatric disability. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Accordingly, service connection for an acquired psychiatric disability is denied.

REASONS FOR REMAND

The issue of entitlement to service connection for sleep apnea.

Thereafter, in a December 2024 appellate brief from the Veteran's representative, they asserted, for the first time, that the Veteran's claimed sleep apnea was secondary to his service-connected migraine headaches, patellofemoral syndrome of the right knee, and/or patellofemoral syndrome of the left knee with obesity as an intermediate step. More specifically, they contend that his service-connected disabilities posed challenges to physical fitness and exercising due to factors like a fear of triggering another migraine attack, reducing motivation due to pain, and difficulty with maintaining a consistent routine. The representative also submitted medical literature and articles in support along with their appellate brief.

To date, no medical opinions have been obtained addressing whether the Veteran's current diagnosis of obstructive sleep apnea is secondary to his service-connected migraine headaches, patellofemoral syndrome of the right knee, and/or patellofemoral syndrome of the left knee. Thus, the Board finds that a remand is necessary to obtain addendum medical opinions.

The matters are REMANDED for the following action:

Obtain a medical opinion from an examiner addressing the nature and etiology of the Veteran's claimed sleep apnea. The need for an in-person examination is left to the discretion of the examiner proffering the opinion.

In rendering an opinion, the examiner should:

(a.) Opine as to whether the Veteran would not have his current diagnosis of obstructive sleep apnea but-for his service-connected migraine headaches, patellofemoral syndrome of the right knee, and/or patellofemoral syndrome of the left knee and explain why.

(b.) Opine was to whether the Veteran's current diagnosis of obstructive sleep apnea would be less severe and result in less functional impairment but-for his service-connected migraine headaches, patellofemoral syndrome of the right knee, and/or patellofemoral syndrome of the left knee and explain why.

(c.) Opine was to whether either the Veteran's service-connected migraine headaches, patellofemoral syndrome of the right knee, and/or patellofemoral syndrome of the left knee caused or aggravated his obesity and explain why.

If the Veteran's obesity was caused or aggravated by his service-connected migraine headaches, patellofemoral syndrome of the right knee, and/or patellofemoral syndrome of the left knee, the examiner should also address whether his obesity was a substantial factor in causing his current diagnosis of obstructive sleep apnea and explain why.

If the Veteran's obesity was a substantial factor in causing his current diagnosis of obstructive sleep apnea, the examiner should also address whether his current diagnosis of obstructive sleep apnea would not have occurred but-for his obesity and explain why.

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Suh, G.J.

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.

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