Citation Nr: 1314745 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-25 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), a dysthymic disorder, and chronic major depression. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran (Appellant or Claimant) attended an initial period of active duty for training (ACDUTRA) in the Army Reserves National Guard from February 2, 1982 to July 13, 1982. She thereafter served periods of ACDUTRA and inactive duty for training (INACDUTRA) in the North Carolina Army National Guard until December 1989. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. In a November 2008 decision, the Board denied the Veteran's appeal for service connection for PTSD. The Veteran appealed the November 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2010 memorandum decision, the Court vacated the Board's November 2008 decision and remanded the case to the Board for further development. In January 2011, the Board remanded the Veteran's claim for service connection for PTSD to the Appeals Management Center (AMC) for further development. The record indicates that the AMC complied with the Board's Remand request, specifically reviewing newly admitted evidence and re-adjudicating the Veteran's claim. Therefore, the Board finds that the AMC complied with the January 2011 Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In August 2011, the Board again remanded the Veteran's claim for service connection for PTSD to the AMC for further development. The record indicates that the AMC complied with the Board's requests, specifically by making reasonable attempts to procure any outstanding National Guard treatment records by contacting the National Personnel Records Center (NPRC) and the Brooke Army Medical Center at Fort Sam Houston. In August 2011, in response to the AMC's requests for records, both the NPRC and Brooke Army Medical Center informed the AMC that their facilities did not have any additional treatment records concerning the Veteran. Therefore, the Board finds that the AMC complied with the August 2011 Remand directives. See Id. In July 2012, after the AMC's July 2012 re-certification of the appeal to the Board, the Veteran submitted a release form, indicating that she wished for VA to acquire private treatment records from the Goldsboro Psychiatric Clinic, dated May 23, 2005 to the present. In July 2012, after the July 2012 re-certification of the appeal to the Board, the Veteran submitted additional evidence to the AMC without a waiver of Agency of Original Jurisdiction (AOJ) review. The aforementioned evidence consisted of a July 2012 letter from Dr. H., a private examiner practicing at the Goldsboro Psychiatric Clinic, addressed to an individual named W. M. In this letter, Dr. H. wrote that he had examined the Veteran recently, and had diagnosed her as having PTSD and chronic major depression. In its August 2012 Remand, the Board noted that the record indicated that the Veteran had been treated for other psychiatric disorders, specifically a dysthymic disorder and chronic major depression, during the pendency of this appeal. As a result, the Board reclassified the Veteran's claim, labeling it a claim for service connection for a psychiatric disorder, to include PTSD, a dysthymic disorder, and chronic major depression. As part of its August 2012 remand, the Board requested that the Veteran identify all VA and non-VA health care providers who had treated her for residuals of a traumatic brain injury (TBI). The Board also requested that any accident records be obtained from an April 1993 automobile accident. The Board further requested that treatment records be obtained from the Goldsboro Psychiatric Clinic. The Board also requested that an attempt be made to verify the Veteran's respective periods of ACDUTRA and INACDUTRA. Thereafter, the Board requested that the Veteran be afforded VA neurological and psychiatric examinations to determine the etiology of any TBI and/or psychiatric disorder, if found, and their relationship to the Veteran's period of ACDUTRA or INACDUTRA. In conjunction with the remand, the AMC, in an August 2012 letter, requested that the Veteran provide the names and addresses of all providers, VA and non-VA, who had treated her for her claimed disorders. In November 2012, the National Guard forwarded additional records with regard to the Veteran's service. In December 2012, additional treatment records were received from the Goldsboro Psychiatric Clinic. In September 2012 and October 2012, the Veteran was afforded VA neurological and psychiatric examinations. As a result of the actions taken by the AMC, the Board finds that requirements of the Board directives were complied with. See Id. FINDINGS OF FACT 1. The Veteran sustained a head trauma during service in July 1982 and October 1984. 2. The Veteran does not have a psychiatric disorder, to include PTSD, and/or residuals of TBI that is related to any period of ACDUTRA/INACDUTRA National Guard service. CONCLUSION OF LAW A psychiatric disorder, to include PTSD and/or residuals of a TBI, was not incurred in or aggravated by active service to include during a period of ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101, 106, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that the Veteran's status has been substantiated. The Board observes that in October 2005 and August 2012 letters the RO/AMC provided the Veteran with notice that informed her of the evidence needed to substantiate her claim. The letters also told her what evidence she was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told her to submit relevant evidence in her possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A March 2006 letter provided the Veteran with notice as to the disability rating and effective date elements of the claim. Although some of the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of her claim and been given ample time to respond, the RO/AMC has also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran has presented detailed argument which shows she is aware of what is needed to substantiate the claim. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment (medical) records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. As noted above, the AMC has complied with all the requests from the Board with regard to obtaining records. No other relevant records have been identified. As it relates to the claim of service connection for a psychiatric disorder, to include TBI, the Board notes that this matter was remanded in August 2012 to obtain opinions with regard to the etiology of any current psychiatric disorder, to include TBI, and its relationship, if any, to her period of ACDUTRA/INACDUTRA. In conjunction with the most recent Board remand, the Veteran was afforded the required examinations in September and October 2012 which provided the requested opinions and detailed rationale to support those opinions and complied with the Board remand. The Board notes that, in a January 2013 statement in support of claim, the Veteran stated that the compensation examination in October 2012 was inadequate for rating because it took more than three hours. She reported that she had to take the MMPI-2 test two times because of a computer problem. She indicated that the second time she took this test she put whatever came to mind because she just wanted to leave. As to the Veteran's contentions, the Board notes that there is no indication in the VA examination report that there was a malfunction with the computer on which the Veteran was tested. The Court has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000). In applying this legal principle to the present instance, the presumption of regularity applies to VA's actions and it is presumed that VA properly processed all claims submitted by the appellant or her representative, including performing the October 2012 VA examination, in a proper manner. Clear evidence is required to rebut the presumption of regularity. See Id.; see also Baldwin v. Brown, 13 Vet. App. 1, 6 (1999), Mindenhall v. Brown, 7 Vet. App. 271 (1994). Moreover, the purpose of affording a veteran a VA examination is to obtain objective evidence with regard to the veteran's claimed disorder. Inherent in this is the requirement that the Veteran fully cooperate with the examiner's requests. The Veteran, by indicating that she put whatever came to mind because she just wanted to leave, demonstrates that she was uncooperative with the examiner's requests to provide information which was necessary to properly address her claim, so was not longer participating in the VA examination. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's functional absence due to lack of sufficient cooperation in participating in the VA examination in her own claim, even though physically present, is a factor in VA's decision to adjudicate the current claim without further development of the claim. See 38 C.F.R. § 3.655 (stating that when entitlement to a VA benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim will be rated based on the evidence of record). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments set forth by her and the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to notify or assist the Veteran in substantiating this claim. Service Connection for a Psychiatric Disorder 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. § 1131; 38 C.F.R. § 3.303(a). 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). The conditions at issue are not a "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply to the non-chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21),(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). The PTSD diagnosis must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. §§ 3.304(f), 4.125(a) (2012). The Veteran maintains that she currently has a psychiatric disorder, to include PTSD, and residuals of a TBI, as a result of two incidents which occurred while she was on ACDUTRA with the National Guard. As to the claimed July 1982 pool incident, the Veteran maintains that she sustained a head injury as a result of a diving accident into a pool where she hit her head and chipped a tooth. The Veteran has stated that she received treatment for the incident at Brooke Army Medical Center. Attempts to obtain records of treatment from this facility have proved unfruitful. However, the Board notes that, in support of her claim that the incident occurred, the Veteran submitted a December 2003 statement from C. W., who indicated that he had known the Veteran for over forty years, to include her active military career. He stated that, on or about July 13, 1982, the Veteran returned home with a swollen lip and broken tooth resulting from a swimming accident that occurred two days prior to her separation from Ft. Sam Houston. He noted that the injures to her lip and tooth were very apparent and she appeared to be in severe pain. He stated that the tooth had been replaced prior to her service separation; however, she appeared to have difficulties eating and drinking for several days thereafter. In a June 2004 statement, the Veteran's mother indicated that the Veteran returned home on July 13, 1982, with a broken tooth and swollen lip following a swimming accident two days prior to her separation. In a statement dated the same day, the Veteran's sister also indicated that the Veteran returned home with a chipped tooth and swollen lip on July 13, 1982, following a swimming accident. Based upon the above, the Board will find, despite an absence of records to support her claim, that the Veteran sustained injuries as a result of the a pool incident which occurred while on ACDUTRA. As it relates to the second incident, which the Veteran claims to have occurred in April or October 1984, the Board notes that personnel records received in conjunction with the Veteran's claim reveal that the Veteran was found to be on ACDUTRA for the time period from September 9, 1984 through December 13, 1984. A treatment record from Hawley Army Community Hospital, dated October 4, 1984, reveals that the Veteran sustained a blow to her head when playing push ball. It was indicated that the Veteran did not recall the source of the blow but she remembered being struck and getting up off the ground. It was also indicated that there was a possible loss of consciousness for a few seconds with vertigo at that moment and then a headache. The Veteran denied having headaches, vertigo, or blurry vision at the time of examination. Following examination, a diagnosis of head trauma was rendered. As a result of the above, the Board finds that the Veteran did sustain head trauma in October 1984 (not April 1984) while on ACDUTRA. Service treatment records which have been associated with the claims folder reveal that, at the time of the Veteran's March 1981 National Guard enlistment examination, normal findings were reported for the head, face, neck and scalp, along with normal neurological and psychiatric findings. On her March 1981 enlistment report of medical history, the Veteran checked the "yes" box when asked if she had or had ever had dizziness of fainting spells. It was noted at that time that the Veteran had had dizziness and fainting spells as a teenager related to her nerves. At the time of a March 1984 National Guard examination, normal neurological and psychiatric findings as well as normal findings for the head, face, neck, and scalp were reported. On a report of medical history prepared at that time, the Veteran checked the "no" box when asked if she had or had ever had frequent or severe headaches. She also checked the "no" boxes when asked if she had or had ever had depression or excessive worry; frequent trouble sleeping; loss of memory or amnesia; nervous trouble of any sort; or periods of unconsciousness. The Veteran did check the "yes" box when asked if she had dizziness or fainting spells. It was noted that she had fainted twice in high school as a result of a syncope. Such evidence reflects no residuals following the in-service July 1982 diving accident. In a January 1987 service personnel record, specifically a "Statement in Lieu of Current Medical Examinations," the Veteran stated that she had been treated at an Army community hospital for 20 minutes in April 1984 for diagnosed head trauma. The Veteran did not identify any subsequent treatment related to a head injury or a psychiatric disorder. The Veteran stated that she believed that she was medically qualified to perform satisfactory National Guard service. In support of her claim, the Veteran submitted a June 2005 report from her private physician, E. H., M.D., who diagnosed the Veteran as having PTSD and dysthymic disorder. He noted that the Veteran gave a history of being a professor at NCCU in Durham, NC, teaching professional development in the Business Department since June 2004. He stated that the Veteran served in the Army from June 1982 to December 1990, and that in 1982 she had a diving board injury, broke her tooth, and was knocked unconscious. He indicated that the Veteran had been having nightmares since 1982. He noted that because of the Veteran's "service-connected" PTSD she was mildly compromised in her ability to sustain work relationships. In a July 2012 report, Dr. H. diagnosed the Veteran as having chronic PTSD and chronic major depression. He noted that the Veteran had never been married and had been unable to work since July 2010. He noted the history that she had served in the US Army from 1982 to 1990. He relayed that her stressors were that she went into the military as a dental lab technician then became a finance officer. He indicated that she had a "driving" accident in 1982, which knocked her unconscious and knocked out her tooth. He further indicated that during a training exercise, the Veteran was knocked unconscious. He also reported that the Veteran witnessed several injuries while enlisted. He reported that the Veteran began having nightmares since the accident in 1982 and currently had nightmares five to six times per week. He again stated that, because of this "service-connected" PTSD, the Veteran was severely compromised in her ability to sustain work relationships. In August 2012, the Board requested that the Veteran be scheduled for a VA neurological examination to assess whether she had residuals of a TBI, to include whether it was sustained during ACDUTRA or INACDUTRA. The examiner was to report whether the Veteran currently had residuals of a TBI, and, if residuals of a TBI were diagnosed, whether they were at least as likely as not (50 percent probability or greater) that the residuals of a TBI were related to a period of ACDUTRA or INACDUTRA, to include potentially the July 1982 diving accident and/or the April [sic - October] 1984 "push ball" incident. The examiner was also requested to discuss the reported April 1993 automobile accident which included the Veteran hitting her head on a windshield and sustaining a concussion. As part of the remand, the Board also requested that the Veteran be afforded a VA psychiatric examination to ascertain the nature and etiology of any current psychiatric disability, to include PTSD. The VA examiner was requested to list all diagnosed psychiatric disorders and to offer the following opinions: If the VA examiner diagnosed PTSD, was it at least as likely as not (a 50 percent or higher degree of probability) that a claimed stressor or stressors related to a period of ACDUTRA or INACDUTRA, specifically the July 1982 diving accident and/or the April 1984 push ball accident, was/were adequate to support a diagnosis of PTSD. The Board also asked whether, regardless of whether the VA examiner diagnosed the Veteran as having PTSD, it was at least as likely as not (a 50 percent probability or more) that any other diagnosed psychiatric disorder was first manifested during a period of ACDUTRA or was otherwise related to an injury incurred during a period of ACDUTRA or INACDUTRA. In conjunction with the Board remand, the Veteran was afforded a VA neurological examination in September 2012. The examiner indicated that the claims folder was available for review. As to the question of whether the Veteran now had or had ever had a TBI or residuals of a TBI, the examiner indicated "yes." A diagnosis of TBI was rendered with the date of diagnosis being listed as 1982, 1984, and 1993. As to the history of the Veteran's TBI and residuals attributable to TBI, the examiner noted that as to the date of the first TBI, July 1982, the Veteran reported that she went for a swim in the swimming pool, slipped on a diving board and fell into the pool, hitting her head against the side of the pool. It was also indicated that she apparently had loss of consciousness for a few minutes. She also reported that she broke her front tooth during the fall and was taken to Brooke Army Hospital. As to the date of the second TBI, which the VA examiner reported as happening in April 1984, but which Reserve treatment records reflect occurred in October 1984, the Veteran reported that she was on active duty and during training something hit her head, apparently while doing push ball. She reported having loss of consciousness for some time. She was taken to the base clinic and treated. As to the third TBI incident, which the Veteran reported occurred in April 1993, the Veteran stated while driving an automobile, her car was broadsided and she hit her head on the windshield. There was no loss of consciousness and the Veteran reported that she was taken to Johnson County Hospital and treated. As to the onset of TBI residuals, the examiner noted that the Veteran claimed that the onset of her PTSD started after the July 1982 pool incident. She reported having long and short term memory loss as a result of the TBI, which began in 1988. The Veteran indicated that she started having short and long-term memory loss. She stated that she would forget to do chores and would forget where she was going and could not remember what she was reading. As to facets of TBI-related cognitive impairment, the VA examiner in September 2012 indicated that the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Judgment was found to be normal; social interaction was routinely appropriate; the Veteran was always oriented to time, place, and situation; motor activity was normal; visual spatial orientation was normal; and there were no subjective symptoms or neurobehavioral effects. The Veteran was also noted to be able to communicate by spoken and written language and to comprehend spoken and written language. Consciousness was reported as normal. With regard to subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to TBI, the examiner checked the box next to mental disorders. The VA examiner indicated that neuropsychological testing had been performed on September 6, 2012. As to the TBI issue, the VA examiner in September 2012 indicated that the Veteran claimed that she had had TBI incidents while on active duty and that she had PTSD following the first TBI in 1982 and memory loss following the TBI in 1984. The VA examiner also noted that the Veteran had a third TBI in 1993 and that she was not claiming any residuals from the third TBI incident. The VA observed that a review of the record revealed that the Veteran had a blow to the head while playing pushball in 1984. The VA examiner also noted objective findings made at that time. The examiner further observed that VA treatment records dated in September 2010 and November 2011 made no mention of TBI. The examiner further indicated that clinical examination at the time of the current examination revealed no visible head scars; normal ear, nose, and throat examination; normal neurological examination; normal Romberg and coordination tests; and a normal gait. The examiner also stated that the Veteran had been seen by a VA psychiatrist and it had been confirmed that the Veteran had an established TBI. The examiner noted that, for residuals of PTSD and memory loss, the psychiatric report was to be referred to. In October 2012 the Veteran was afforded a VA examination by a neuropsychologist. The VA neuropsychological examiner indicated that the Veteran's claims folder, which included review of the Board remand documents and the Veteran's pertinent and available electronic medical records, was reviewed prior to the examination. The VA neuropsychological examiner in October 2012 indicated that the Veteran did not have any Axis I psychiatric diagnosis. The VA examiner stated that no diagnosis was rendered due to the presence of multiple psychiatric symptoms validity testing problems indicative of psychiatric symptoms and cognitive deficit amplification/over-reporting behavior, which obviates the ability to render an accurate psychiatric diagnosis, objectively assess any residuals TBI cognitive difficulties or comment on possible psychiatric system effects on social/occupational and global functioning without having to resort to mere speculation. The VA neuropsychological examiner noted that the lack of a diagnosis provided here did not preclude the presence of a psychiatric condition or possible functional effects of a condition (if present). The examiner noted that the Veteran was not currently service connected for PTSD but had received outpatient mental health care treatment in the community (most recently documented with Dr. H. in July 2012). However, the current multiple testing and evaluation irregularities did render the ability to accurately and validly diagnose a psychiatric condition for C & P medicolegal rating purposes and functional impact of any conditions subject to mere speculation. The examiner stated that it was practically impossible to accurately determine the continued presence and/or severity of any psychiatric condition, TBI cognitive/neurobehavioral residuals, or their functional impact without reasonable engagement from the Veteran in the C & P mental health evaluation process. The VA neuropsychological examiner indicated that the Veteran demonstrated significant symptom validity testing problems on multiple independent measures indicative of the presence of psychiatric and cognitive symptom amplification or exaggeration during the current evaluation. As a result, the ability to determine or confirm psychiatric diagnoses, TBI cognitive/neurobehavioral residuals, or any other psychiatric symptom presence/severity on global functioning was subject to mere speculation. The examiner specifically indicated that there was no mental disorder diagnosis or diagnosis of a TBI. The VA neuropsychological examiner noted that the Veteran was administered psychological and cognitive testing as well as symptom validity testing as part of the requested evaluation. The examiner observed that the Veteran's performances on multiple independent symptom validity measures (e.g., SIMS, MMPI-2, TOMM) were indicative of the presence of psychiatric symptom over reporting/amplification and minimal to poor cognitive effort during the evaluation, which rendered her subsequent psychological testing invalid and called into question the ability to reasonably make a psychiatric diagnostic determination without having to resort to mere speculation. The examiner noted that specifically, the Veteran's SIMS score was above not only the manual recommended cutoff for the presence of symptom amplification/exaggeration, but was also above the more liberal research-modified SIMS cutoff as recommended by VISN 6 guidelines. He noted that this indicated that the Veteran was reporting psychiatric symptoms that were not typical of the vast majority of psychiatric disorders and was responding in a fashion that was normatively aberrant. In addition, the Veteran's validity scales on the TOMM and CVLT were problematic and additionally indicative of poor/minimal cognitive effort during the evaluation process. The examiner stated that the prospect of psychiatric symptom amplification and lack of full engagement in the evaluation process was reinforced additionally by notably invalid MMPI-2 results, which revealed significantly elevated F, Fb, and Fp scales. The examiner further stated that the Veteran's fake bad scale (FBS) on the MMPI-2 was also notably elevated (FBS=30). The VA neuropsychological examiner also noted that the Veteran was also administered the CES, BAI, BDI-2 and PCLM tests to asses for combat-related trauma exposure, risk, self-reported anxiety symptoms, self-reported depression symptoms, and PTSD-specific self-reported symptoms, respectively. However, the aforementioned problematic symptom validity results had rendered these four psychological testing measures invalid and poor estimates of psychiatric symptom presence, magnitude or severity. The VA examiner further indicated that the Veteran was administered multiple cognitive measures as part of a brief neuropsychological evaluation conducted concurrent with the PTSD assessment. The measures administered included D-KEFS selected subtests, gripped strength, grooved pegboard, Conner's CPT-2, WAIS-IV selected subtests, CVLT-2, BVMT-R, and sensory perceptual evaluation, all which were rendered invalid and unreliable estimates of the Veteran's current cognitive abilities by the aforementioned multiple, independent symptom validity testing irregularities. The VA neuropsychological examiner also noted that, in addition to the symptom validity testing problems and general testing invalidity, an examination of the Veteran's testing results from the measures above revealed an attempt to present oneself as so severely cognitively impaired that it would be highly unlikely (less likely than not) that such deficits would exist in a reasonably functionally independent person. The examiner noted that the severity of the apparent (but invalid) cognitive testing difficulties would not be likely as residuals in an individual with multiple, remote, low grade concussions (i.e., three in the case of the current Veteran, with the last being the motor vehicle accident in 1993). The examiner noted that, in addition, the Veteran's personal, educational, and work histories were grossly inconsistent with the pattern of apparent (but invalid) cognitive and psychological testing data obtained during the evaluation. The VA examiner stated that TBI cognitive residuals (if present) were known to be cumulative and greater in severity during the acute recovery phase. Post-concussion symptoms typically abated after six months post-injury and long-term effects (if present) should be noted on the individual's history. The examiner observed that the Veteran completed a Master's degree from NCCU in May 1999 and maintained a university-level community outreach and public health jobs at various NC higher learning institutions, all of which occurred approximately six years after her last reported concussion/TBI in 1993. He stated that the Veteran's work and educational histories were inconsistent with presence of TBI residuals from 1993 or earlier concussion events and were certainly inconsistent with her current (but invalid) cognitive test results. He stated that worsening of psychiatric or cognitive symptoms remote to a psychological trauma or TBI/concussion event(s) was very uncommon. The examiner noted that based upon the historical evidence and the Veteran's long accomplished work and education histories, it was less likely than not that remote TBI/concussion or PTSD (reportedly associated with July 1982 diving incident) were etiological entities behind the Veteran's current psychiatric and cognitive complaints. The VA examiner stated that, as a result of these independent metrics of problematic symptom validity, the ability of the examiner to reasonably render diagnoses and functional limitation/impact determination for C & P rating purposes was obviated. He stated that mere speculation would be required to make any determination given the aforementioned symptom validity problems. The VA neuropsychological examiner indicated that the lack of diagnosis provided did not preclude the presence of a psychiatric condition or possible function effects of a condition (if present), but the multiple testing and evaluation irregularities did render the ability to accurately and validly diagnose a psychiatric condition for C & P rating purposes and the functional impact of any conditions subject to mere speculation. The examiner stated that it was impossible to accurately determine the continued presence and severity of any psychiatric symptoms or their functional impact without reasonable engagement from the Veteran in the C & P mental health evaluation process. The Veteran does not currently have any psychiatric diagnosis, to include PTSD, or residuals of a TBI that are related to (due to or as a result of) an in-service injury or disease occurred during a period of ACDUTRA or INACDUTRA. As noted above, the Board has indicated that the July 1982 and October 1984 incidents occurred when the Veteran was on ACDUTRA. However, the Veteran's remaining service treatment records do not reference any residuals resulting from either incident. Following the July 1982 pool incident, the Veteran was afforded a National Guard examination in March 1984, at which time normal neurological and psychiatric findings, as well as normal findings for the head, face, neck, and scalp, were reported. Furthermore, on her report of medical history filled out at that time, the Veteran checked the "no" boxes when asked if she had frequent or severe headaches; depression or excessive worry; frequent trouble sleeping; loss of memory of amnesia; nervous trouble of any sort; or periods of unconsciousness. While the Veteran did check the "yes" box when asked if she had dizziness or fainting spells, the same box was also checked on her March 1981 enlistment report of medical history, which reflects these were preexisting symptoms that did not begin during service, and were present prior to the July 1982 diving accident. In addition, in the notes section of the March 1984 report, it was reported that she had fainted twice in high school as a result of a syncope. There was no indication that the Veteran had any symptomatology associated with the pool incident. As to the October 1984 pushball incident, while on examination the Veteran was noted to have sustained head trauma at that time, the Veteran denied having headaches, vertigo, or blurry vision. In addition, while the Veteran stated that she had been treated at an Army community hospital for 20 minutes in April 1984 [sic-October 1984] and had been diagnosed with head trauma, in her January 1987 service personnel record entitled "Statement in Lieu of Current Medical Examinations," she did not identify any subsequent treatment related to a head injury or a psychiatric disorder at that time and reported that she believed that she was medically qualified to perform satisfactory National Guard service. There is also no evidence of diagnosis or treatment for any psychiatric disorders, to include residuals of a TBI, in the years immediately following the Veteran's release from National Guard service. The first notation of any treatment following service was not until 2005, when the Veteran was seen by Dr. H. and diagnosed with PTSD resulting from the 1982 pool incident at that time. As to the Veteran's contentions that she had PTSD/TBI residual problems immediately following the 1982 pool incident, the Veteran's own, more contemporaneous histories that were made for treatment purposes are inconsistent with, and outweigh, her more recent assertion made for compensation purposes that she had residuals following the 1982 diving accident. For example, on her more contemporaneous March 1984 report of medical history the Veteran denied having or of ever having had frequent or severe headaches, depression or excessive worry, frequent trouble sleeping, loss of memory of amnesia, nervous trouble of any sort, or periods of unconsciousness. In addition, on her January 1987 "Statement in Lieu of Current Medical Examinations," the Veteran made no reference to the 1982 pool incident, referencing only the 1984 pushball incident, did not identify any subsequent treatment related to a head injury or a psychiatric disorder, and stated that she was medically qualified to perform satisfactory National Guard service. The Board finds that the Veteran's denials of psychiatric/TBI problems or residuals thereof in National Guard records prepared in close proximity to the ACDUTRA incidents are more probative than are her assertions voiced decades later and in connection with a claim for disability benefits (for monetary compensation). See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). It simply is not consistent that the Veteran would have been experiencing psychiatric /TBI problems but would at the same time deny any such problems in documents prepared to address her health status while serving in the National Guard. For the above reasons, in-service injury or disease or aggravation during service of psychiatric difficulties/TBI residuals has not been established, either through the clinical evidence of record or through the reports of medical history/statements provided by the Veteran during her period of National Guard service following the above reported in-service incidents. As to the Veteran's belief that she has a psychiatric disorder/TBI residuals related to the 1982 and 1984 ACDUTRA incidents, the Board applies the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran has not been shown to have the requisite training or expertise to render an opinion as to the etiology of any psychiatric disorder/TBI residuals and their relationship, if any, to her periods of ACDUTRA/INACDUTRA National Guard service. Moreover, there are many complex factors/contributors to psychiatric and neurological disorders and/or TBI residuals, which the Veteran also does not have the requisite training to address. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of a veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). It is the accuracy of the facts that are important, rather than the source of the information. A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In this regard, the Board notes that the Veteran has supplied two opinions from Dr. H. indicating that the Veteran currently has PTSD related to her period of ACDUTRA, citing the 1982 diving incident as the cause of the PTSD. Dr. H. indicated that in support of her claim the Veteran reported having had flashbacks since 1982, which is a factually inaccurate report of history by the Veteran to Dr. H. As noted above, the Veteran did not report having flashbacks at the time of her March 1984 report of medical history and normal psychiatric findings were noted at that time. Furthermore, the Veteran did not indicate that she had had any residuals of from 1982 pool incident at that time. Moreover, on her January 1987 Statement in Lieu of Current Medical Examinations, the Veteran again did not reference the 1982 pool incident at all and made reference only to the 1984 incident, with no indication of any residuals resulting from that. The Board notes that Dr. H's opinion is based upon this factually inaccurate information supplied by the Veteran, which is inconsistent with the more contemporaneous, probative, and accurate evidence of record. The Board does not reject the Veteran's history of flashbacks since 1982 because the history is from the Veteran (see Kowalski, 19 Vet. App. at 177), but is rejecting the history of flashbacks since 1982 because it is factually inaccurate, as inconsistent with and outweighed by more contemporaneous and more probative lay (Veteran's own medical histories), medical evidence (treatment record recording of symptoms), and absence of contemporaneous notation of symptoms in service or private treatment records. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal, 5 Vet. App. at 461; Sklar v. Brown, 5 Vet. App. 140 (1993). The Board further notes that the Court has repeatedly declined to adopt a "treating physician rule" that would require giving additional evidentiary weight to the opinion of a physician who treats the veteran regularly. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Harder v. Brown, 5 Vet. App. 183, 188 (1993); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993). The Board further observes that the September 2012 VA examiner provided an opinion which appears to indicate that the Veteran had a TBI which he related to the 1982, 1984, and 1993 incidents; however, the examiner did not provide any rationale to support this opinion. Furthermore, testing performed in conjunction with the examination did not reveal any difficulties other than evidence of mild impairment of memory, attention, concentration, or executive functions resulting in slight impairment. Judgment, motor activity, visual spatial orientation, and consciousness were reported as normal, with the Veteran noted to always be oriented to time, place, and person and to have appropriate social interaction, along with no subjective symptoms or neurobehavioral effects, and the ability to communicate by spoken and written language and to comprehend spoken and written language. The Board is assigning greater probative value to the November 2012 VA examiner's opinion that the Veteran does not currently have a psychiatric diagnosis or residuals of a TBI. The examiner's opinions were based upon a more thorough review of the evidence, including from the claims folder, and a comprehensive examination of the Veteran. The examiner provided detailed rationale as to why he could not render a current psychiatric diagnosis or a diagnosis of TBI, and why further testing with the Veteran's lack of cooperation would not provide additional bases for an opinion. The VA neuropsychiatric examiner provided in-depth detail as to why the testing scores obtained in conjunction with the Veteran's claim were inaccurate or invalid, including why the invalidity was due to the Veteran's own actions. See 38 C.F.R. § 3.655. The Veteran's entire claims file, which at the time included the service treatment records, private and VA treatment records, and statements from the Veteran along with other lay statements, was reviewed. Based on all the evidence, the examiner in October 2012 rendered an opinion that was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact, or relied on any inaccurate fact. Furthermore, while the examiner in October 2012 indicated that the test scores were invalid, which prevented him from rendering diagnoses of TBI and/or a psychiatric disorder, he did provide detailed rationale as to why the Veteran did not have residuals of a TBI, discussing the Veteran's education and work history subsequent to the last claimed TBI in 1993, as evidence that the Veteran did not have residuals of a TBI. Thus, the Board finds the November 2012 VA examiner's opinion to be the most probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current psychiatric disorder and/or claimed TBI residuals are related to any period of ACDUTRA/INADUCTRA in the National Guard. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Service connection for a psychiatric disorder, to include PTSD, a dysthymic disorder, and chronic major depression, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs