Citation Nr: 1802583 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1981 to August 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2015, the Board remanded the appeal for further development. The case has since been returned to the Board for appellate review. FINDING OF FACT An acquired psychiatric disorder to include the Veteran's current depression did not manifest in service and is not otherwise related thereto, to include the reported nervous symptoms during service. Nor is there evidence of a psychosis during service or within one year of service. CONCLUSION OF LAW An acquired psychiatric disorder, to include depression, was not incurred in active service, nor may a psychosis be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.384 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Review of the claims file reveals compliance with VA's duty to notify by way of letters dated in April 2012, October 2015, and August 2017. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). See also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). With respect to the duty to assist, the RO has obtained the Veteran's service treatment records (STRs), private medical evidence, VA treatment records, Social Security Administration records, and a VA examination. For his part, the Veteran has submitted personal statements, argument from his representative, and additional private medical evidence. Pursuant to the September 2015 Board remand, the Veteran was provided medical authorization forms (VA Forms 21-4142) in October 2015 and August 2017 to release any additional private medical records relevant to his service connection claim. However, the Veteran did not respond to this request, despite being prompted to do so. He did not submit or identify any additional relevant private or VA medical evidence, despite indicating on several occasions that he would submit a private nexus opinion. In this case, the Board is satisfied the RO has made reasonable efforts to obtain any additional private records. 38 C.F.R. § 3.159(c). The Veteran was also afforded a VA psychiatric examination and opinion in November 2013 that addressed the etiology of his current depression. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). It is acknowledged that in his March 2014 VA Form 9, the Veteran challenged the adequacy of the November 2013 VA psychiatric examination and opinion. The Federal Circuit has held that both the competence of a VA examiner and the adequacy of a VA examination and opinion are to be assumed unless challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). Specifically, the Veteran challenged the adequacy of the VA examination by stating that the November 2013 VA examiner failed to mention that during service, while stationed at the Dover Air Force Base Automotive Craft Shop in Delaware, this location was used as a make-shift morgue for soldiers who were killed in the 1983 Lebanon bombing of a Marines base. The Veteran stated that his presence at the Dover Air Force Base in 1983 exposed him to many body crates of the dead Marines, causing him psychiatric distress. However, upon close review, the Board finds the November 2013 VA psychiatric examination and opinion was thorough, exceptionally detailed, supported by explanations, based on a review of the claims folder, and supported by clinical evidence of record. It was also based on accurate clinical testing. The VA examination also considered the Veteran's lay assertions. A considerable reported history was solicited from the Veteran - in fact, this history included the Veteran's reported exposure to the caskets of dead Marines in 1983 at Dover Air Force Base in Delaware. The VA examiner addressed the central medical issues in this case and provided a rationale for his medical opinions. There is no probative support in the record that the November 2013 VA psychiatric examination was inaccurate or inadequate. The Veteran's subjective complaints have been considered by the Board, but are outweighed by the clear and adequate findings on the VA examination report. As such, there is no persuasive basis for any further VA examination or opinion as to the psychiatric disorder issue on appeal. The Veteran's service connection claim has been pending in the VA system for approximately seven years, and requires a prompt resolution. With regard to the previous September 2015 Board remand, a remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. However, only "substantial" compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In the present case, the Board has reviewed its previous September 2015 remand instructions, and finds that the RO has substantially complied with the Board's instructions. There is no allegation to the contrary from either the Veteran or his representative. Finally, the record reflects that several letters sent to the Veteran during the course of the appeal were returned as undeliverable. As the Court stated in Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), "[p]rinciples of administrative regularity dictate a presumption that Government officials 'have properly fulfilled their official duties.'" The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the RO's mailing of notice of a VA medical examination. Jones v. West, 12 Vet. App. 98, 100-02 (1998). According to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q). In Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), the Court noted that VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach. See also Crain v. Principi, 17 Vet. App. 182, 186 (2003). But this presumption is not absolute, and may be rebutted with "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Id. The mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the Board decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003). However, the presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the Board mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the Board decision. Clarke v. Nicholson, 21 Vet. App. 130, 134 (2007) (noting that VA's use of an incorrect address is often consequential to delivery). Once the presumption is rebutted, the Secretary has the burden to show that the Board decision was mailed in the appropriate manner "or that the appellant actually received a copy of the decision." Sthele v. Principi, 19 Vet. App. 11, 19 (2004); see Fluker v. Brown, 5 Vet. App. 296, 298 (1993). However, in the normal course of events, it is generally the Veteran's burden to keep VA apprised of his whereabouts. If he does not do so, VA is not obligated to "turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). In the present case, various letters were sent to multiple addresses used by the Veteran during the course of the appeal, but were still returned as undeliverable, with no forwarding address provided. The Veteran's Agent was also contacted by the RO in order to locate the Veteran, according to a March 2016 Report of General Information (VA Form 27-0820), but the Agent was unable to reach the Veteran. In any event, in this case, VA properly fulfilled its duties in sending mail and correspondence to the Veteran and his Agent. There is no evidence VA did not follow its regular mailing practices or that its mailing practices were not regular. All letters to the Veteran were properly addressed, stamped, and mailed in adequate time to reach the intended recipient. Multiple addresses were used to reach the Veteran. It is not the fault of the VA that the Veteran has at times failed to apprise both the VA and his Agent of his correct mailing address or whereabouts. In summary, VA has properly discharged its official duties by mailing various correspondence to multiple, plausible addresses the Veteran had provided to VA. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C. § 5103A (2012). Hence, there is no error or issue that precludes the Board from addressing the merits of the service connection issue on appeal. II. Service Connection Law and Analysis The Veteran contends that his current depression with sleep disturbance is the same disorder he was treated for during his active duty service in the Air Force from 1981 to 1985. Specifically, while stationed at the Dover Air Force Base Automotive Craft Shop in Delaware, this location was used as a make-shift morgue for soldiers who were killed in the 1983 Lebanon bombing of Marine Corps base. The Veteran stated that his presence at the Dover Air Force Base in 1983 exposed him to many body crates of the dead Marines, causing him psychiatric distress. The Veteran reported anhedonia beginning towards the end of his service at Dover Air Force Base with decreased energy, low mood, and irritability. (Incidentally, anhedonia is defined as a total loss of feeling of pleasure in acts that normally give pleasure. See Dorland's Illustrated Medical Dictionary 92 (31st ed. 2007)). Post-service, the Veteran says his depression and sleep disturbance have been "persistent with little improvement over time." See December 2011 informal claim; March 2014 VA Form 9; November 2013 VA psychiatric examination report. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Initially, none of the Veteran's mental health disorders in the record are an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker, 708 F.3d at 1338-39. Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case. That is, the Veteran's depressive disorder and other mental health disorders the Veteran has been assessed with are not listed as a psychosis under 38 C.F.R. § 3.384. The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5): (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to General Medical Condition; (d) Psychotic Disorder Not Otherwise Specified; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; (h) Shared Psychotic Disorder; and (i) Substance-Induced Psychotic Disorder. 38 C.F.R. § 3.384 (2017). In fact, in comments accompanying 38 C.F.R. § 3.384, VA specifically excluded major depressive disorder, bipolar disorder, mood disorder with psychotic features, and anxiety disorders from the definition of "psychosis" because they did not conform to the terminology employed in American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 71 Fed. Reg. 42758-60 (July 28, 2006). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran's appeal to the Board in February 2015, which is after August 4, 2014. Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case. Regardless, the Board is cognizant that DSM-IV diagnoses and GAF scores are still evidence that should be considered in assessing claims. The regulation change does not remove the previous diagnoses and GAF scores from the record; they are still evidence that has to be considered and weighed. See VBA Live Manual, M21-1, Part III.iv.3.A.6.e (DSM-5 and Mental Disorders Specialty Examinations); Part III.iv.4.H.1.k. (Removal of the GAF Score From the DSM and Assigning Evaluations Based on Prior GAF Score). Under 38 C.F.R. § 3.303(a), 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a). Walker, 708 F.3d at 1338-39. Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The nexus element may also be fulfilled by competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of a psychiatric disorder since service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service. Davidson, 581 F.3d at 1316. That is, 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, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, 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 on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). "The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and [VA adjudicators] must be determined on a case-by-case basis. Id. For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include depression. The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran currently has the claimed disability. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Here, the Veteran has been diagnosed with depression - major depressive disorder; depression, NOS; and also an adjustment disorder with mixed anxiety and depression. See May 2011 SSA Comprehensive Psychiatric Assessment; November 2013 VA psychiatric examination; and VA treatment records dated from 1999 to 2016. Thus, it is undisputed the Veteran has current psychiatric disabilities. The remaining is whether any current psychiatric disorder manifested in service or is otherwise related thereto. In adjudicating the present claim, the Board has considered the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). With regard to in-service evidence, STRs document that in November 1984, December 1984, January 1985, and March 1985, the Veteran underwent marital counseling with his wife. It was noted that there was marital discord associated with increased pressure at the time. At a June 1985 STR report of medical history at separation, the Veteran reported a history of nervous trouble. However, the Veteran specifically denied a history of depression or excessive worry or frequent trouble sleeping depression. Importantly, the June 1985 psychiatric examination at separation was normal. No psychiatric disorder was assessed at separation. With regard to in-service evidence, the Board's independent search of Internet records confirms the Veteran's assertion that Dover Air Force Base is the home to the Defense Department's joint services morgue and mortuary, and was used as a make-shift morgue for soldiers who were killed in the 1983 Lebanon bombing of the Marine Corps base. Moreover, STRs confirm the Veteran's presence at Dover Air Force base in 1983. Thus, the Board finds the Veteran's exposure to body crates of the dead Marines in 1983 at Dover Air Force Base was consistent with the places, types, and circumstances of the Veteran's service in the Air Force at that time. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board is permitted to supplement the record with any recognized medical treatise without the necessity for a remand or referral, especially if it weighs in favor to the Veteran. See 38 C.F.R. § 19.9(d)(5). Post-service, with regard to any potential allegation of continuity of symptomatology, the Federal Circuit has held that only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by way of continuity of symptoms as described in § 3.303(b). See again Walker, 708 F.3d at 1340. In this vein, as discussed above, the Veteran's particular psychiatric disorders are not listed as one of those chronic diseases, such that service connection in the present case would not be available for continuity of symptoms of any psychiatric disorder the Veteran has. Post-service, in order to provide the Veteran every benefit of the doubt, the Board has still considered whether the Veteran had frequent or persistent or ongoing or residual symptoms of a psychiatric disorder continuing after his separation from the Air Force in 1985. In this regard, the Veteran is indeed competent to report observable psychiatric symptoms both in-service and post-service. See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). On this issue, the Veteran has competently reported depression and sleep disturbance during service and after service that have been "persistent with little improvement over time" from 1985 onwards. See Veteran's reported history to November 2013 VA psychiatric examiner. From the record, it appears the Veteran's first actual clinical treatment for depressive and sleep impairment symptoms was in 1998 or 1999. See e.g., August 1999 VA primary care initial evaluation note; November 1999 VA psychology consult. However, once evidence is determined to be competent, the Board must determine whether the evidence also is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (emphasis added). Definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. Indiana Metal Prods. v. NLRB, 442 F.2d 46, 52 (7th Cir. 1971). Credibility has been termed as "the quality or power of inspiring belief." Webster's Third New International Dictionary (1966). "Credibility involves more than demeanor. It apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963). That is, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the important factor. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, weigh a lack of contemporaneous medical evidence as one factor, among others, that the Board can consider and weigh against lay evidence. Buchanan, 451 F.3d at 1337. That is, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this regard, post-service, the most probative evidence of record fails to document any frequent or persistent symptoms or complaints of depression or sleep disturbance until 1998, which is 13 years after separation from service. The Veteran's lay assertions as to ongoing or "persistent" psychiatric symptoms continuing after the confirmed in-service marital counseling and the confirmed in-service exposure to the caskets of dead Marines, are outweighed by the clinical evidence of record. That is, certain post-service medical evidence is inconsistent with the Veteran's lay assertions regarding frequent or persistent psychiatric symptoms from the time of his Air Force service. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (the Board can use inconsistent statements, among other factors, to impeach the credibility of a witness). The Board emphasizes that contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date. Curry v. Brown, 7 Vet. App. 59, 68 (1994). In particular, the following clinical evidence of record is inconsistent with, and sometimes even contradictory to the Veteran's lay assertions: At a June 1985 report of medical history for a STR separation examination, although the Veteran reported a history of nervous trouble, he specifically denied a history of depression or excessive worry or frequent trouble sleeping. This contradicts his latter assertions regarding persistent trouble sleeping and depression during service. Also, the June 1985 psychiatric examination at separation was normal. This is an objective clinical determination. An August 1985 Wake County Medical Center record noted as to the Veteran's history of chronic illnesses, it was negative except for headaches. No psychiatric problems were mentioned. At a June 1986 VA examination, the Veteran reported headaches and a swollen leg. However, under the section for the nervous system and psychiatric impairments, nothing of consequence was noted. The VA examiner made referrals for the Veteran to orthopedic and ophthalmology specialists for further evaluation, but not to a psychiatric specialist. VA treatment records dated from 1987 to 1994 revealed complaints and treatment for a variety of medical conditions, including right ankle pain, obesity, headaches, occasional constipation, and blurred vision. However, there was no mention of depression or psychiatric impairment. A November 1991 VA consultation sheet discussed pain and swelling of the right lower leg, but there were no other medical problems, as stated by the Veteran. Private treatment and hospital records dated from 1995 to 1997 recorded left and right leg deep vein thrombosis (DVT) since 1995. The Veteran was prescribed Coumadin therapy at times. A review of symptoms and past medical history sections in April 1995 and June 1995 and December 1997 private history and physicals were negative except for DVT, migraines, asthma, obesity, remote fracture of the left leg, low back pain, and cervical back pain. However, there was no mention of depression or psychiatric impairment. At a November 1999 VA psychology consult, the Veteran reported several symptoms of depression for the first time, including increased irritability, social withdrawal, and anhedonia. The Veteran also reported a highly variable sleep schedule, as well as difficulty initiating and maintaining sleep, which may also exacerbate his chronic headaches. It was noted the Veteran had several "life stressors," but no mention was made of his Air Force service. A September 2001 VA social work consult stated the Veteran "appears depressed and saddened given his current financial situation." He was unemployed since 1998 secondary to health problems. His financial problems are secondary to lost income due to his disabilities. Mental health referrals were recommended for management of his depression. There was no mention of his Air Force service being a factor for his current psychiatric symptoms. An April 2002 VA mental health outpatient note assessed moderate symptoms of depression with unclear etiology - (e.g., medicine induced depression vs mdd secondary to chronic pain). The Veteran was noted to have "multiple psychosocial stressors" including unemployment, financial strain, and marital tension around finances. There was no mention of his Air Force service being a factor for his current psychiatric symptoms. A May 2002 VA neurological consult noted high stress due to financial problems. There was no mention of his Air Force service being a factor for his current psychiatric symptoms. Per an August 2002 VA treatment note, the Veteran admitted he was under a tremendous amount of stress lately due to SSA disability rejection, financial difficulties, and potential eviction for non-payment of rent. He had a future appointment with a mental health care provider for his psychosocial stressors. He was provided Elavil for help with sleep and depression. There was no mention of his Air Force service being a factor for his current psychiatric symptoms. According to an October 2002 VA notation about a consult request, the Veteran needed treatment for "depression associated with job / financial difficulties / chronic pain problems / inability to get disability compensation." Again, there was no mention of his Air Force service being a factor for his current psychiatric symptoms. At an April 2003 VA mental health CBOC evaluation, the Veteran was diagnosed with chronic pain and depression and put on citalopram. The VA evaluator commented the Veteran had a "several yr hx of depressed mood, primarily due to financial stressors." There was no mention of his Air Force service being a factor for his current psychiatric symptoms. An April 2004 VA treating psychiatrist letter remarked that she sees the Veteran for his chronic major depressive disorder. The Veteran reported to her that he became depressed post-service in 2000 after losing his job due to medical disabilities. He exhibits poor sleep, irritability, crying spells, feelings of worthlessness, increased weight, and decreased enjoyment of life, poor energy, and poor concentration. He has thoughts of suicide. The VA psychiatrist opined "[t]he depression appears to be a reaction to the major financial stresses and physical limitations caused by the Veteran's physical disabilities. This is his first episode of depression, and he has been depressed chronically since 2000." Again, there was no mention of his Air Force service being a factor for his current psychiatric symptoms. In a May 2004 SSA decision, it was determined the Veteran has been disabled since October of 2000 due to venous insufficiency, post-phlebitic syndrome, hypertensive cardiovascular disease, and depression. SSA disability records make no mention of his Air Force service being a factor for his current psychiatric symptoms. In an October 2009 private treatment note, the Veteran was described as being under a lot of stress - he was about to lose his home and his wife. The diagnosis was for an adjustment disorder due to significant stress in life for the past few months, combined with chronic pain. He was prescribed Cymbalta. Again, there was no mention of his Air Force service being a factor for his current psychiatric symptoms. A May 2011 SSA Comprehensive Psychiatric Assessment diagnosed the Veteran with adjustment disorder with mixed anxiety and depression, with factors including marital discord, severe health issues, and financial issues. The Veteran reported his problems began in 2004 when he developed leg pain and swelling, causing him to be fired from his job. His wife left him, which cumulated with him becoming very depressed and dysfunctional. He worked at the post office for 8 years until these problems began. The SSA psychiatrist opined "[h]is earlier years of development were unremarkable and he denies problems with the law." He had a history of seeing a psychiatrist at one time following the death of his father, but he was under no treatment now. The Veteran reported that after his wife left him due to his illness, he had to raise kids by himself and he felt sorry for himself. He experiences sadness, hopelessness, helplessness, and low self-esteem. His thought content was occupied by feeling lonely, with no money to support basic needs, and having to raise kids by himself, causing discontent and unhappiness. "Suffering was depression on account of his physical and financial difficulties" according to the SSA psychiatrist. Again, there was no mention of his Air Force service being a factor for his current psychiatric symptoms. Finally, at a June 2015 VA mental health consult, it was noted the Veteran was previously seen in MH via PRIME Psychology in 1999 and Raleigh MH-CBOC intermittently from 2002-2004. The Veteran was "[d]iagnosed with chronic depression in the setting of chronic pain." Again, there was no mention of his Air Force service being a factor for his current psychiatric symptoms. All of the above reports generated for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care at the time. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). With regard to post-service psychiatric symptoms, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Fountain v. McDonald, 27 Vet. App. 258 (2015). In this regard, the Veteran's statements in the medical evidence above, made for the purpose of medical diagnosis or treatment, are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). That is, if the Veteran was having frequent or "persistent" or ongoing depressive or sleep impairment symptoms in the 1980s and 1990s after separation from the Air Force, common sense dictates it is highly unlikely he would fail to mention these symptoms in extensive VA, private, and SSA treatment records dated from 1985 to 1999. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (when a medical condition or symptom has not been noted in the medical records, the Board may not consider that as negative evidence unless it is the sort of condition or symptom that would normally be noted or reported); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In summary, there is a lack of corroborating evidence both at separation from service in 1985 and also thereafter post-service, with regard to the Veteran's lay assertions regarding ongoing depressive and sleep symptoms from the time of his service in the Air Force. In fact, much of the above clinical evidence is inconsistent with, or sometimes contradictory to his lay assertions. In none of these medical records did the Veteran state that his depressive or sleep disorder symptoms began in service in the 1980s or are otherwise related to his marital counseling or exposure to the caskets of dead Marines during service from 1981 to 1985. Instead, in the above VA, private, and SSA treatment records, the Veteran often points to post-service intercurrent causes of his depression. The Veteran's failure to report earlier psychiatric symptoms for 13 years after separation from service is persuasive evidence that he was not then experiencing any relevant psychiatric problems, which outweighs his present recollection to the contrary. Therefore, the Veteran's lay assertions are not persuasive, probative, or credible on the service connection issue. With regard to a nexus, there is probative medical evidence of record that clearly weighs against a relationship between the Veteran's current psychiatric disorders and his period service in the Air Force. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Specifically, the Veteran was afforded a VA psychiatric examination in November 2013. The VA examiner provided a very comprehensive medical opinion, which considered the both the clinical and lay evidence and assertions of record. The VA examiner rendered a diagnosis of depressive disorder, NOS. The VA examiner opined the depressive disorder is "less likely than not (less than 50 percent probability)" incurred in or caused by the Veteran's service in the Air Force. The VA examiner's rationale was that although the Veteran indicated that his depressive symptoms and sleep disturbance developed after witnessing "a lot" of body crates returning from the bombing in Lebanon and have persisted with little improvement over time, there is little to no evidence of depressive symptoms prior to 1999, and his symptoms are described in April 2002 as "moderate...[with] unclear etiology (e.g. medicine induced depression vs [Major Depressive Disorder] secondary to chronic pain...multiple psychosocial stressors including unemployment, financial strain, and marital tension around finances." Furthermore, in April 2003 the Veteran was noted to report "several year [history] of depressed mood, primarily due to financial stressors." Similarly, his depression apparently became most severe in 2009 when he lost his wife and house - significant psychosocial stressors. He did engage in brief marital therapy in 1984 during service, and was diagnosed with "marital maladjustment" due to poor communication and "working out resentments," but there is no evidence to suggest this is due to individual psychological issues versus relational issues. Furthermore, he endorsed "nervous trouble of any sort" on his separation examination in June 1985 (but denied "depression or excessive worrying...frequent trouble sleeping"). In addition, the source of his depressive symptoms is consistently reported by post-service providers to be his chronic pain across the range of his treatment notes within the VA healthcare system. Also, the Veteran appeared to be (at least) mildly embellishing his symptoms during the November 2013 VA examination - as such he did not meet the criteria for major depressive disorder. The VA examiner added that while the Veteran's self-reported history could be clinically sufficient to establish his exposure to body bags during his military service as the start of his psychiatric symptoms, his current tendency to embellish his symptoms during the present evaluation and records contrary to his self-report detract from the validity of his self-report. That is, the source of his depressive symptoms is consistently reported by providers to be his chronic pain across the range of his treatment notes within the VA healthcare system. The VA examiner also explained that of note, many of the Veteran's primary symptoms (e.g. sleep disturbance, decreased energy, and irritable mood) could possibly be (at least) partly caused by poor sleep hygiene. Specifically, the Veteran described having horrible sleep habits which consistently have been found to negatively impact functioning including spending significant amounts of time in his room when not sleeping, lying in bed when not sleeping, watching television in bed, keeping the television on when he sleeps, going to bed at variable times during the day and night, napping during the day, and engaging in limited (if any) exercise during the day. He is also noted to have a fairly unregimented daily routine which can also impact achievement of restful sleep. The November 2013 VA psychiatric examination and opinion is fully adequate as discussed above in the VCAA analysis for this decision. There is no contrary medical opinion of record. With regard to lay evidence of a nexus of current depression to the Veteran's active service, the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson, 581 F.3d at 1316. In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As alluded to above, the Veteran is indeed competent to report purported symptoms of depression and sleep disturbance during and after service. See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09; Buchanan, 451 F.3d at 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). However, the Veteran does not have the medical training or expertise to actually diagnose and relate the depressive disorder he has now to the reported symptoms during service. See 38 C.F.R. § 3.159(a)(1)-(2); Kahana, 24 Vet. App. at 438. Importantly, the Veteran's contention of "persistent" depressive and sleep disorder symptoms since separation from service in 1985 is not supported by, and is inconsistent with, the clinical evidence of record. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for an acquired psychiatric disorder, to include depression. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs