Citation Nr: 1310262 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-41 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision on behalf of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that entitlement to service connection for PTSD was denied in a January 2009 rating decision. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held, however, that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the issue on appeal has been revised to include consideration of the other applicable psychiatric diagnoses of record in this case. In April 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In May 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development, to include obtaining private treatment records and affording the Veteran a VA examination. The action specified in the May 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The most probative competent and credible evidence of record shows that that Veteran does not have an acquired psychiatric disability, to include PTSD, that had onset in service or that was caused or permanently aggravated by his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 105, 1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1, 3.301, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. See 38 C.F.R. § 3.301(c)(3). In February 1998, VA General Counsel concluded that, with respect to claims filed after October 31, 1990, 38 U.S.C.A. § 105(a), as amended by section 8052 of OBRA, and as implemented by 38 C.F.R. § 3.1(m), precluded service connection of a disability resulting from alcohol or drug abuse on the basis of the disability's incurrence or aggravation in service. See VAOPGCPREC 2-98. Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2012). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id. See also 38 C.F.R. § 4.125(a) (2012). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others (fear of hostile military or terrorist activity), and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41092 (July 15, 2010) (codified at 38 C.F.R. § 3.304(f)). If PTSD is based on personal assault, as alleged in this case, evidence from sources other than the veteran's records may corroborate the occurrence of the stressor. 38 C.F.R. § 3.304(f)(3). Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. In Patton v. West, 12 Vet. App. 272, 277 (1999), the Court advised that the portions of the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c, provided "guidance on the types of evidence that may serve as 'credible supporting evidence' for establishing service connection of PTSD which allegedly was precipitated by a personal assault during military service." In December 2005, M21-1, Part III was rescinded and replaced with a new manual, M21-1MR, which contains the same PTSD-related information as M21-1, Part III. The corresponding new citation for M21-1, Part III, 5.14(c) is M21-1MR IV.ii.1.D.14 and 15. The aforementioned Manual lists evidence that might indicate occurrence of such a stressor, including lay statements describing episodes of depression; panic attacks or anxiety but no identifiable reasons for the episodes; visits to medical clinics without a specific ailment; evidence of substance abuse; and increased disregard for military or civilian authority. The Manual also lists behaviors such as requests for change of military occupational specialty (MOS) or duty assignment, increased use or abuse of leave, changes in performance and performance evaluations, increased use of over-the-counter medications, unexplained economic or social behavior changes, and breakup of a primary relationship as possibly indicative of a personal assault, provided that such changes occurred at the time of the incident. The Court has also held that the provisions in this Manual, which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations, and are binding on VA. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 282. In this case, the Veteran contends that he has an acquired psychiatric disorder as a result of active service. Service treatment records dated in November 1971 noted he reported he was having difficulty sleeping and that he wanted a discharge for a nervous condition. The examiner's diagnosis was situational/adjustment disorder. A subsequent November 1971 report noted he complained of stomach problems and that he was having adjustment-type problems with his unit. A January 1972 separation examination revealed a normal clinical psychiatric evaluation. The Veteran testified at his April 2011 Travel Board hearing that he had problems in service, including racial conflicts and a physical altercation with a fellow serviceman in Germany, and that he had problems with employment soon after discharge. He also stated that he had problems with drug and alcohol abuse and that he could not recall when he was first treated for a psychiatric disorder. In his September 2009 substantive appeal, the Veteran claimed that he self-medicated with drugs to cope with his psychiatric problems. The Board notes that the available medical records include diagnoses of polysubstance abuse, depression, substance-induced mood disorder, and PTSD. VA records include July 1973 records of inpatient treatment for drug dependence, specifically heroin use of approximately four years duration. An October 1973 hospital report notes the Veteran was admitted for a five year history of heroin addiction. A diagnosis of drug dependence, heroin, was provided. VA treatment records from December 1974 document an even more significant history of substance abuse, with the Veteran reporting a ten year history of heroin abuse, as well as use of cocaine and marijuana. In August 2006, the Veteran reported the onset of cocaine and heroin use as age 17. Significantly, all of these medical records place the onset of the Veteran's substance abuse prior to his military service in 1971. Additionally, none of these records document any claims by the Veteran of physical or sexual assault in service. More recent VA treatment records show that the Veteran has provided conflicting explanations for his psychiatric complaints. In October 2006, the Veteran reported that he thought he had PTSD due to a robbery in 1992 which resulted in a broken right tibia and "traumatic incidents from the war", on which he did not elaborate. See VA Psychiatry H & P Note (October 7, 2006). An October 2006 Discharge Summary notes that the Veteran sought psychiatric inpatient treatment with various psychiatric complaints including suicidal ideations; however, later during his admission, the Veteran denied he was ever suicidal and stated that he "just said that so I could get in and get help getting service connected." See VA Discharge Summary (October 11, 2006). A May 2007 treatment record notes that the Veteran was referred for treatment for PTSD by "other veterans." He stated that "I wasn't in Vietnam, but I was in Germany during the Vietnam era" and "26 guys died of spinal meningitis in the barracks in Ft. Lewis, Washington, and that was unnerving, and flying over the ocean for 7-8 hours had me all bent out of shape." See VA Psychiatry E & M Note (May 7, 2007). A March 2011 VA treatment record notes that the Veteran reported being abused by his father and witnessing his father abuse his mother until the age of thirteen when he ran away and lived with a drug dealer. See VA Mental Health Domiciliary Note (March 3, 2011). During April 2011 residential treatment for substance abuse, the Veteran was unable to provide any motivation for seeking treatment; however, within a few minutes of meeting the attending physician, he asked for a letter stating that he has depression, which he indicated he intended to use to appeal his denial of service connection for depression and PTSD. When questioned what PTSD symptoms he had or how he got the condition, he responded, "You tell me." In addition to diagnoses of opium dependence (heroin, methadone) and cannabis abuse, the Veteran was also diagnosed with possible malingering. See VA Mental Health Attending Note (April 28, 2011). In May 2011, the Veteran claimed "I've grown to have a psychosis." He alleged that he was the victim of "false information that concerns my DD-214", which somehow led to him losing a job at "the Marshall Field warehouse" and from that point on he "resorted to drug use." See VA MH Substance Abuse Admission Note (May 23, 2011). In August 2011, the Veteran reported that he had been "thinking a lot" about being sexually assaulted in service. See VA Psychiatry Resident Note (August 9, 2011). However, throughout an August 2011 hospitalization, he repeatedly asked his treatment providers if they were "documenting" his complaints of military sexual trauma. See, e.g. VA Psychiatry Resident Note (August 16, 2011), VA Psychiatry Attending Note (August 17, 2011), VA Psychiatry Resident Note (August 18, 2011). At a December 2011 VA Psychiatry Consult, the Veteran claimed that he had difficulty sleeping, nightmares, poor concentration, and feelings of guilt related to military sexual trauma. However, he denied depressed mood, anhedonia, and suicidal ideation. The examining psychiatrist noted that the Veteran was not forthcoming about the alleged incident and was extremely vague in terms of symptoms. See VA Psychiatry Consult (December 19, 2011). Private medical records obtained from Michael Reese Hospital and from Jackson Park Hospital include a May 2006 report which noted the Veteran had a known history of depression and PTSD with psychiatric hospitalization for PTSD in 1982. The records associated with hospitalization in 1982, however, are not of record. At his hearing in April 2011 the Veteran reported he had received treatment at "Thorax" a private medical facility in Chicago, Illinois. These records are also not included in the claims file. In May 2012, the Board remanded this case in an attempt to obtain these private treatment records, but the Veteran failed to provide the necessary releases. Also associated with the Veteran's claims file are records from the Social Security Administration (SSA); however, nothing in these records relates any current acquired psychiatric disabilities the Veteran has to service. In January 2013, the Veteran was afforded a VA examination. At that time, the Veteran described a "normal" childhood. He reported that he was harassed by neighborhood gangs, and dropped out of school because of this intimidation. He worked briefly at Marshall Field's warehouse before joining the Army. His military occupational specialty was a supply clerk. He described his primary stressor as a sexual assault by several fellow service members. He stated that following the assault, he began to feel depressed and started isolating himself. He reported difficulty concentrating at work, which caused him to make mistakes. He claims he eventually told his CO about the incident, but was told to take a general discharge and get out of the military. The Veteran also claimed that he started using drugs and alcohol in service to "forget what happened." Following an interview and a review of the Veteran's extensive claims folder, the VA examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD and that his mood disturbance was etiologically related to his polysubstance use of cocaine, heroin, marijuana, and alcohol. The examiner further concluded that it is less likely than not that the Veteran's substance abuse was incurred in or caused by the Veteran's active military service. Based on all the above evidence, the Board finds that entitlement to service connection for an acquired psychiatric disability, to include PTSD, is not warranted. The January 2013 VA examiner opined that the Veteran does not meet the DSM-IV criteria for PTSD and that the acquired disability he was diagnosed with, a substance-induced mood disorder, did not have onset in service and was not caused by the Veteran's active military service. This opinion is well supported by the evidence of record, which strongly suggests that the Veteran's substance abuse preceded military service, and particularly that evidence dated in the 1970's for treatment purposes in which the Veteran repeatedly dated the onset of his substance abuse to a time prior to his military service. Furthermore, over the years, the Veteran has offered numerous explanations for his psychiatric symptoms to his treatment providers and VA, some which contradict each other, and many of which have nothing to do with the Veteran's military service. These contradictions and inconsistencies undermine the credibility of the Veteran's statements as well as the probative value of the Veteran's testimony, and it is unclear which, if any, of the Veteran's statements are true. There is also considerable evidence documented in the Veteran's treatment records that his accounts of his symptoms were, in part, motivated by secondary gain. Indeed, in October 2006 the Veteran actually admitted that he had falsely reported psychiatric symptoms so that "...I could get in and get help getting service connected." See VA Discharge Summary (October 11, 2006). Having carefully reviewed all the evidence of record, the Board must find that the Veteran's statements are not credible and his testimony is therefore, afforded limited weight. Most significantly, the Veteran's reported mood disturbances have been attributed by the January 2013 VA examiner to his substance abuse. As the Board noted above, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Here, there is ample evidence to conclude that the Veteran's use of drugs has been frequent and progressive to the point of addiction. The record reflects that despite repeated participation in drug detoxification and rehabilitation programs dating back to the early 1970s, the Veteran continued to abuse illegal drugs and alcohol. Further, in January 2013, the most recent VA examiner, who interviewed the Veteran and reviewed all of the pertinent evidence of record including behavioral markers from the Veteran's military service, and attempting to clarify conflicting parallels in the Veteran's story, clearly concluded that the Veteran's polysubstance abuse was not etiologically related to any incident of the Veteran's military service. The Board therefore concludes that the Veteran's drug use in this case is willful misconduct and that his substance-induced mood disorder cannot therefore be service connected. For all the above reasons, entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in September 2006. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The Veteran submitted private treatment records, and was provided an opportunity to set forth his contentions during the April 2011 hearing before the undersigned Veterans Law Judge. The appellant was afforded a VA medical examination in January 2013. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs