Citation Nr: 1334940 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-15 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In March 2010, the Board denied the claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court issued a Memorandum Decision which vacated the Board's decision. In April 2012, the Board remanded for additional development. FINDING OF FACT A psychiatric disorder did not begin during service and is not related to service. CONCLUSION OF LAW The criteria for service connection of a psychiatric disorder are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The service medical records, including the July 1972 separation examination record, reflect no histories or findings suggestive of a psychiatric disorder. The service personnel records also reflect no notations indicative of a psychiatric disorder: although an April 1972 performance evaluation reveals a determination that the Veteran's military attitude was "somewhat lacking," he was still found to be "highly effective" in his professional performance and to "willingly follow commands and regulations," and the performance evaluations throughout service reflect above-average evaluations. A July 1973 VA examination record reveals that the Veteran had "no emotional complaints." May and June 1983 private treatment records indicate that the Veteran successfully completed treatment for habitual alcoholism and drug dependency. A May 1983 psychological evaluation record indicates that the Veteran reported using chemicals since age 18. The examiner found testing suggested dramatic and immature behavior, agitation, extreme sociability, and avoidance of emotional conflicts. A September 1994 statement from a private psychologist indicates that the Veteran had a "stress reaction in relation to his work environment, which was marked by increased anxiety and hyper-agitation." The record indicates that the Veteran was ready to return to work, after a short medical leave of absence, without any limitations. In an addendum letter provided in May 1995, the psychologist reported that the Veteran had a heightened level of anxiety, with paranoid-like thinking, regarding his job at the time of evaluation in August 1994. The psychologist revealed that the August 1994 evaluation revealed a diagnosis of anxiety disorder, not otherwise specified. The psychologist added that evaluation revealed that the Veteran "has a personality which is vulnerable to adjustment and emotional difficulties while under stress." In September 2003, the Veteran reported that operations during his service on the USS Chipola "affected [him] in a couple of ways that were not bothersome until years later." He explained that he "witnessed a lot of crazy things and added to [his] mindset [that] there was some things that a person [does not] have to be proud of." He reported drug and alcohol use during service. He explained that he "cheated death," when he took too many "downers" and when he was using a deck chipper and fresh water hit the electrical cord, located a couple of feet away off the deck, and the cord started sparking. He also reported seeing body bags being hosed off and learning about a colleague who jumped overboard and was not recovered. The Veteran indicated that he abused alcohol and drugs until May 1983. A May 2005 VA "bones" examination reveals the Veteran's history of anxiety which he related to illnesses of family members. In December 2006, the Veteran reported that he believed his in-service drug and alcohol use was due to a "messed up mind and the only way for a person to escape." He added that he used alcohol and drugs to "try and escape that life was here today and gone tomorrow." He also reported having anxiety during service, asking, "who would [not], when you had to function and still had no control over anything." He indicated that he believed he would not have tried to escape through using drugs and alcohol if he did not have a mental condition. An April 2007 RO hearing transcript reveals the Veteran's testimony that he began drinking before service and began using drugs during service. He testified that "there were things that impacted" him during service but indicated that he was unsure what those things were: "whether it may be unwrapping ships off [Viet]nam" which had body bags in the back or a friend who jumped off the boat. He testified that he did not see the friend jump off the boat. He also testified that he was on the boat during a "couple of typhoons" and that he saw a ship which had been cut in half. A June 2007 VA treatment record reflects the Veteran's history that he was in the Navy as a "gunner's mate" and that he was in Vietnam. The record indicates that PTSD screening was negative. However, the record reflects a finding of questionable PTSD, and the Veteran was referred for treatment with L.B. July and September 2007 VA treatment records, reflecting treatment with L.B., reflect the Veteran's history of panic attacks and diagnoses of rule out panic disorder without agoraphobia and history of polysubstance dependence in full, extended remission. A November 2007 VA treatment record indicates that when asked about his military experiences, the Veteran reported, "you have flashbacks throughout life about everything." He reported that he was "always 'in control' - even when taking LSD for months while in Hawaii while experiencing visual hallucinations." However, he indicated that he could not say he was not touched by some of the things in service. The stressors section reflects histories of being able to walk away after hitting a deer on his motorcycle and worrying about commitments and his children." A February 2008 VA treatment record reflects a diagnosis of panic disorder without agoraphobia. Subsequent VA treatment records reflect continued diagnoses of panic disorder without agoraphobia and diagnoses of depressive disorder beginning in July 2011, and a June 2013 VA treatment records reflects a finding of "some" PTSD anxiety related symptoms "from [the Veteran's] tour of duty in the Navy in t[the] Vietnam War" and a positive PTSD screening. A January 2012 private psychosocial evaluation report reflects the Veteran's history of alcohol and drug use during and after service until 1983, when he went for treatment. The Veteran also reported exposure to wounded and dead Americans. He added that a close friend was wounded without his ever knowing the outcome and many other friends were killed in action. He stated that his ship anchored at DaNang during one operation, during which time he had to take his watch operating the well deck, which was "nerve wracking." He also reported being caught in typhoons, witnessing a ship which had been cut in half, witnessing body bags being hosed, and having a friend who jumped overboard. He also reported that he was below deck with a deck crawler and water dripped down on the cord and the cord started sparking. He explained that the wires burned themselves out before anything serious occurred but it was very scary. The Veteran explained, "these military memories [were] very much still present and continue to be quite vivid." The Veteran indicated that he felt "very hopeless and helpless while serving on the ship," because he had no control over anything and was trapped aboard the ship with no alternative. He reported that all he could do was follow orders and try to escape with drugs and alcohol. He added that he began to suffer headaches and panic attacks during deployment and frequently felt nervous and anxious. He also reported experiencing paranoia after coming home, with difficulties trusting and ongoing anxiety. The Veteran indicated that after discharge, he enrolled in college but his panic reactions caused him to withdraw from classes. He added that he subsequently began working, but had to often take leave under the Family Medical Leave Act (FMLA), work without pay, and sick days throughout his career due to his symptoms. Evaluation revealed diagnoses of anxiety disorder and panic disorder without agoraphobia. The examiner noted that the Veteran reported experiencing numerous symptoms since service, including anxiety, panic attacks, isolation and social withdrawal, loss of interest, sleep disturbance, anger and irritability, problems concentrating, low frustration and stress tolerance, and periods of depression. The examiner added that the Veteran described becoming aware of the dangers associated with living on the ship, including from the war to the many threats of the ship itself, and that he reported feeling out of control and helpless, causing him to withdraw into drugs and alcohol, and having headaches and panic attacks during service. The examiner reported that it appeared the Veteran's symptoms "likely developed in response to what he experienced aboard ship as a very uncontrollable and threatening environment." Thus, the examiner found it was more likely than not the Veteran's symptoms were related to military experiences. In July 2012, the Veteran reported nightmares during service as a result of experiencing typhoons while aboard the USS Chipola. He reiterated his experiences seeing the destroyed ship, the man who jumped overboard, and seeing body bags being sprayed. An April 2013 VA examination record reveals the Veteran's history that he had "some periods of increased heart rate, intense anxiety 'probably, and may last for half-hour." The examiner noted that the Veteran's presentation was rather dramatic and theatrical at times, that the Veteran's responses were often vague generalized claims of distress without credible descriptions, and that he often used words such as "probably," "I think so," and "maybe" when asked about various symptoms. The examiner found the Veteran was quick to endorse his claims. The record reflects the Veteran's history that, after discharge, he went to one class but "ran out of there" because he "would have to come back there and did not feel he could keep up with 'the commitment and people telling [him] what to do." He explained that he had spent service with people telling him what to do and did not want to do that again. He reported that he went to work, explaining that he had to take leave without pay at times because he "had to get out of there." He added that he did not like staying at work if there was not work to do and/or he could leave. The examiner noted that the Veteran was vague as to why he had to leave. The Veteran reported not liking the work, the authority, and the everyday stuff. The Veteran later suggested he had a fear of commitment. Reported stressors included experiencing a couple of typhoons while aboard ship. He explained that "nothing significant" happened. He initially reported that he thought he responded "pretty good" but later stated that he was "very scared." The examiner found this stressor did not meet Criterion A for a diagnosis of PTSD and was not related to a fear of hostile military or terrorist activity. The Veteran also reported from seeing a ship after it was cut in half as a result of a run-in with another ship. The Veteran reported that he felt it was a threat that he faced every day. The examiner found the stressor did not meet Criterion A as it was inconsistent with the treatment records and best reflected the dramatic flair the Veteran demonstrated throughout the interview. The examiner also found it was not related to fear of hostile activity. Finally, the Veteran reported a motorcycle accident while intoxicated in early 1972. The Veteran reported that he thought he was scared but did not change anything about his drug or alcohol use. The examiner found the stressor did not meet Criterion A and was not related to a fear of hostile activity. The examiner also found that the Veteran did not meet the other criterion for a diagnosis of PTSD. The examiner found the Veteran did have anxiety disorder, not otherwise specified. The examiner determined that it was less likely as not that the anxiety disorder was related to or caused by service, to include the reported stressors. The examiner explained that the Veteran's records, clinical presentation, and objective tests results suggested that the Veteran has underlying characterological traits that made him more susceptible to being upset by various things. The examiner added that the Veteran demonstrated "rather poor" insight and appeared to be making attribution errors. The examiner explained that although the Veteran currently claimed mental health problems due to events during service, the records did not support that position. The examiner noted that the Veteran's s current report was inconsistent with the records as the current claim of distress related to military events was not consistent with what he had reported to treatment providers. Finally, the examiner noted that the Veteran frequently reported that his strongest feeling against the military service was that he did not like being told what to do. The examiner indicated that the Veteran referenced this several times and often spoke about how he did not like being constrained which caused him to run from the situation. The examiner reported that "this could be seen as he spoke about relationships and frequently leaving work." The examiner found "this [was] more suggestive of characterologial problems" and not a psychiatric symptom resulting from trauma. In May 2013, the Veteran reported that he did not continue taking the course after discharge because after experiencing all the stressors on the ship, "something was very wrong," and he had "no answers" and "could not handle school." The Veteran also reported that he told the VA examiner that experiencing the typhoons caused nightmares and flashbacks and that he had day-to-day fear from the motorcycle accident. Service connection is not warranted for a psychiatric disability. Initially, the Board finds that service connection is not warranted for PTSD because the competent evidence does not indicate that the Veteran has PTSD. The Board acknowledges that the record includes a finding of questionable PTSD and a finding of some PTSD symptoms. However, the record does not reflect a definitive diagnosis of PTSD, although the Veteran has undergone comprehensive evaluation by VA and private psychologists. Moreover, the April 2013 VA examiner determined that the Veteran did not meet any of the criterion for PTSD. The Board acknowledges that the Veteran believes he has PTSD. The record does not suggest that the Veteran is competent to make that determination, however: that is not a determination capable of lay observation but a determination that requires specialized medical knowledge. Davidson, 581 F.3d at 1316. Thus, the Board finds the Veteran does not have PTSD. Service connection is also not warranted for a psychiatric disability other than PTSD. The record indicates that the Veteran has been diagnosed with a psychiatric disorder, namely anxiety disorder and depressive disorder. The probative evidence does not indicate that a psychiatric disorder began during or is causally related to military service, however. Initially, the Board finds a psychiatric disorder did not begin during service. The service medical records reflect no diagnosis of a psychiatric disorder, the service personnel records reflect no notations suggestive of a behavioral change due to psychiatric symptoms, the first diagnosis of a psychiatric disorder dates more than 23 years after separation from military service, and a VA examiner has indicated that the Veteran did not have a psychiatric disability during service. The Board acknowledges that the Veteran has reported that his psychiatric symptoms, including anxiety and panic attacks, began during service. Although the Veteran is competent to report that his psychiatric symptoms, such as anxiety and panic attacks, began during service, the Board finds any such history is not credible in light of the negative history as to "emotional problems" in 1973, the absence of a history of psychiatric symptoms during substance abuse treatment in 1983, as would be expected if they were present, the absence of a history of longstanding symptoms at the time of initial treatment, and the Veteran's vague and conflicting histories as to the relationship between his current symptoms and service. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498 (1995). To this extent, the Board notes that although the Veteran currently reports that he believes a psychiatric disorder began during service because he had symptoms during service, he initially reported, to include at a RO hearing, that he believed he had a psychiatric disability during service because of his drug and alcohol use during service and his failure to use his education benefits, rather than the existence of symptoms per se during service; it is not until 2012, in conjunction with the pending claim for benefits, that he reports symptoms during and since service. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board further acknowledges that a psychologist determined that the psychiatric disorder began during service. The record indicates that the determination was based solely on the Veteran's history of symptoms during service, which the Board has found is not credible, however. Thus, the opinion is not probative evidence of the existence of a psychiatric disorder during service. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006) (the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion). In sum, the Board finds a current psychiatric disorder was not present during service. Furthermore, the Board finds a current psychiatric disorder is not related to service. The Board acknowledges that the Veteran was exposed to stressful circumstances, including typhoons, the death of a friend, and a motorcycle accident, during service. The Board further acknowledges that a private psychologist has linked the Veteran's current anxiety disorder to these stressors. However, the private opinion is based on histories from the Veteran which are not consistent with the record and which the Board finds are not credible. In addition to the conflicting histories of in-service symptoms discussed above, the Board adds that the Veteran's previous statements suggested that he failed to fulfill his educational benefits due to his drug and alcohol use rather than panic attacks or other psychiatric symptoms. In the absence of evidence that the private examiner based the opinion on anything other than the Veteran's non-credible histories, such as a review of the file, the Board finds the opinion is not probative. In contrast, the Board finds the VA examiner's negative nexus opinion is probative as it is based on review of the file and is supported by a rationale which is consistent with the evidence of record. The Board further acknowledges that the Veteran used drugs and alcohol during service and that the Veteran believes the drug and alcohol use were due to a psychiatric disorder. The record does not include any medical opinions corroborating that determination, however, and the record does not suggest that the Veteran is competent to determine such a link exists: that is a determination that requires specialized medical knowledge. Davidson, 581 F.3d at 1316. In the absence of probative evidence of a link to service (either through date of onset or causation), service connection is not warranted; the Veteran's claim is denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant notice by letters dated in September 2005, May 2007, and July 2012, and the claim was readjudicated in a May 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Furthermore, VA has obtained VA treatment records, assisted the appellant in obtaining evidence, attempted to verify the reported stressors, and afforded the appellant the opportunity to give testimony. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended that there are outstanding, available records. VA has afforded the Veteran a VA examinations and obtained opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran has contended that the examiner was not empathetic and did not accurately document his histories and symptoms. The Board has reviewed the examination record and finds the medical examination and associated findings and opinions are adequate, as they are based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran and they are consistent with the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The case was previously before the Board in April 2012, when it was remanded for stressor verification, examination of the Veteran, and medical opinions. The requested development was completed. Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). ORDER Entitlement to service connection for a psychiatric disorder is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs