Citation Nr: 1623109 Decision Date: 06/09/16 Archive Date: 06/21/16 DOCKET NO. 13-04 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from June 1985 to March 1990, and from January 1991 to March 1991. This appeal comes to the Board of Veterans Appeals (Board) arising from an October 2010 rating action by the Regional Office (RO) in Denver, Colorado, which denied a claim for service connection for PTSD. The Board has recharacterized the issue as stated on the cover page of this decision to interpret the claimed condition as broadly as possible. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In February 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge who is rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2014 & Supp. 2015). This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bronchitis has been raised by the record in a July 1999 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include PTSD, due to his service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in, or as a result of, service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014 & Sup. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to service connection for PTSD. He has claimed a number of stressors, discussed infra, to include events involving bombings in several cities in Germany, an injury of a soldier changing a tire, an injury or death of a soldier who was trapped between two vehicles, a soldier who was accidentally shot during a field exercise, and sustaining carbon monoxide poisoning while he was in the back of a truck. In April 2010, the Veteran filed a claim for service connection for PTSD. In October 2010, the RO denied the claim for service connection for PTSD. The Veteran has appealed. In February 2016, following the issuance of the most recent supplemental statement of the case in June 2015, additional medical evidence was received that is accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304 (2015). Therefore, the Board may properly consider such newly received evidence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). To the extent that a claim for service connection for PTSD has been presented, as it is not shown the Veteran engaged in combat, or that he was exposed to hostile military or terrorist activity, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); VBA Manual M21-1, IV.ii.1.D.3.a. Compensation is not payable for a disability that is a result of the appellant's own alcohol or drug abuse. See 38 U.S.C.A. §§ 105, 1110, 1131 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.1(n), 3.301(c) (2015); Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351; see also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). The Veteran's service treatment records from both of his periods of active duty service do not show any relevant complaints, findings, or diagnoses. An entrance examination report for his first period of active duty, dated in May 1984, does not note an acquired psychiatric disorder, or the presence of any psychiatric symptoms. A separation examination report from his first period of active duty is not of record. An entrance examination report for his second period of active duty service, dated in January 1991, does not note an acquired psychiatric disorder, or the presence of any psychiatric symptoms. A separation examination report from his second period of active duty dated in March 1991, shows that his psychiatric condition was clinically evaluated as normal. In an associated "report of medical history," he indicated that he did not have a history of "depression or excessive worry" or "nervous trouble of any sort", providing highly probative factual evidence against his own claim. As for the post-service medical evidence, VA progress notes show that beginning in 2006, the Veteran was noted to have such symptoms as depression and panic attacks. He is shown to have reported a history that included childhood emotional, physical, psychological and sexual abuse. See e.g., VA progress notes, dated in July 2006 and July 2009. A number of reports, dated in 2014, note an incident in 2013 in which he attempted to evade law enforcement after violating a restraining order and was shot three times by the police. He indicated that he spent about three weeks in jail related to this incident. His diagnoses included major depressive disorder (MDD), dysthymia, depression, PTSD, anxiety, and a panic disorder. Alcohol abuse and participation in a SATP (substance abuse treatment program) is noted as recently as January 2016. A VA PTSD disability benefits questionnaire (DBQ), dated in December 2012, shows the following: the Veteran's claims file had been reviewed. The Veteran did not serve any combat tours; he served in Germany. VA records show that in July 20065 the Veteran underwent a mental health intake evaluation, at which time he was diagnosed with a generalized anxiety disorder, and recurrent major depressive disorder. He reported having an abusive childhood. Shortly thereafter, he was diagnosed with major depressive disorder not otherwise specified, and rule out PTSD. He reported having nightmares of being beaten with a board during childhood. In March 2007, he was noted to have major depressive disorder and PTSD, without explanation, and at no point are the symptoms related to stressor events that occurred while in the service. The primary discussion in the chart notes describe stressors related to marriage, custody of children, financial stressors, and work stressors, not service (again, the Veteran's own statements to health care providers provides evidence against his current claims). A December 2008 report notes depression and PTSD from childhood trauma, with no mention of service-connected activities. In October 2009, the Veteran sought assistance writing a stressor statement from his therapist. He reported being burned by a training grenade, and bombings in three cities in Germany in which he was in the vicinity, but was not close enough to be aware of the bombings. He reported being dragged from a burning tent in February 1986, and the death of a staff sergeant in September 1986 due to a field accident. He said that in March of April of 1987, he suffered possible carbon monoxide poisoning in the back of a truck. He reported having alcohol poisoning and becoming ill, the death of his mother, and a problem with his marriage, with deployment shortly thereafter. He said that a fellow soldier, J.J., was pinned between two vehicles, and that in February 1990 a tire exploded, damaging the arm of a chief warrant officer. He said that his son's birth was stressful, and he mentioned riots in Fort Jackson. Following service, his medical history included hospitalization in February 2011 due to severe anxiety with suicidal ideation. There was a possible suicide attempt in September 2011. He reported that he continued to have suicidal ideation. With regard to his work history, he was noted to have worked for the Federal prison system for the past 191/2 years. On examination, the Veteran was noted to report both physical and emotional abuse throughout his childhood, that he had been sexually assaulted at age 15, and that he had been removed from his home when he was a senior in high school. The examiner noted that when he was asked to describe his inservice stressors, the Veteran was vague and had difficulty remembering names and dates. He stated that he did not directly witness the accidental shooting of the staff sergeant, however, he had previously seemed to describe himself as having been there. The Veteran "seemed to indicate that he was a witness" to the incident involving a soldier who was injured after he was pinned between two vehicles, "but in previous mention in 2009, he did not appear to be directly there, but describes having to wait while they cleared the body." He essentially reported that he witnessed the incident in which a chief warrant officer was injury while changing a tire, to include providing him with first aid. He said that his mother was killed in a car accident in 1987, and that he got married shortly after that, that he had to redeploy right back to Germany after his marriage, and that he found that difficult. He also reported having to go out to the field shortly after his son was born prematurely and discharged from the ICU (intensive care unit). The examiner stated that other than the development of the stressor statement in 2009, the Veteran has never participated in treatment regarding military stressors. The examiner stated that the Veteran presented with major depressive disorder, which was not evident prior to entrance into service, and that he was not treated in the service for mental health issues. Therefore, this condition was not exacerbated by military service. He presents with symptoms associated with PTSD as related to childhood trauma. He was not treated for mental health issues during service, and he did not discuss childhood issues until after discharge. He lists military events that are difficult to verify because he is unable to recall specifics such as names or dates. The stressors he mentioned on examination were limited and do not meet the first criteria of PTSD where the stressors involve terror or horror or fear of loss of life. Although the Veteran has been in treatment since 2006, only once did he mention military stressors, and that was in association with preparing a letter for filing a claim, not in a therapeutic manner. The Veteran's treatments never specifically involved a discussion of military trauma that was significant enough to invoke mention in either the psychiatrist's or the mental health therapist's chart note. PTSD is present unrelated to service and not exacerbated by service, as evidenced by the fact that the Veteran did not bring military stressors into the treatment process. Employment was maintained consistently, although he sometimes struggles with fellow employees. He is close to retirement and would like a less stressful work environment and could use a level of support. The Axis I diagnoses were major depressive disorder, and PTSD. The major depressive disorder as likely as not has existed for quite some time but was not treated in the service and was not mentioned while he was in the service. The Veteran does not seem to associate his major depressive disorder to any service-related stressors and it does not appear to be associated to military service. The PTSD is associated with childhood trauma. Although the Veteran mentions stressors during service, he has never been treated for these stressors and has never brought them into a therapy session to discuss in a therapeutic manner, and therefore it is determined that PTSD symptoms are related to childhood issues not treated until after the military and that were not exacerbated by the military, as they have never been associated or connected to service in therapy. PTSD symptoms were not originated out of military service and were not caused by fear of hostile military action or terrorist activity. It is important for the Veteran to understand that the best evidence in this case, in some points the Veteran's own statements, provides evidence against the claim that he has PTSD related to service. In October 2010, the RO issued a memorandum in which it concluded that there was insufficient evidence of record to warrant an attempt to verify any claimed stressor with the JSRRC (the U.S. Army and Joint Services Records Research Center). With regard to the claim for an acquired psychiatric disorder (other than PTSD), the Board finds that the claim must be denied. The Veteran's service treatment records do not show any relevant complaints, findings, or treatment, and the Veteran's psychiatric condition was clinically evaluated as normal upon separation from service in March 1991. He denied having any relevant symptoms at that time. Following separation from service, the earliest medical evidence of an acquired psychiatric disorder is found in VA reports dated in 2006. This is about 15 years after separation from service. The Veteran has not specifically, alleged a continuity of symptoms since his service, and this period without treatment is evidence that there was not a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent opinion in support of the claim. The only competent opinion is found in the December 2012 VA DBQ, and this opinion weighs against the claim. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and it is accompanied by a sufficient explanation and findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, and in any event, the Veteran is not shown to have a chronic disease listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Finally, to the extent that the Veteran has been diagnosed with alcohol abuse, a disability that is a result of the appellant's own alcohol or drug abuse, is not a compensable disease or injury within the meaning of veterans' benefits law. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c), 3.303(c), 4.9; see also VAOPGCPREC 7-99. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. The claim for PTSD must also be denied, as there is no verified service stressor upon which a diagnosis of service-related PTSD may be based. 38 C.F.R. § 3.304(f); VBA Manual M21-1, IV.ii.1.D.3.p. The Board further notes that even assuming arguendo that a verified stressor was of record, service connection would still not be warranted. The Veteran is shown to have a history of childhood abuse. In this regard, the Veteran's entrance examination reports, dated in 1984 and 1991, do not show that he was found to have an acquired psychiatric disorder. Therefore, a pre-existing acquired psychiatric disorder is not shown or "noted," Crowe v. Brown, 7 Vet. App. 238 (1994), the presumption of soundness attaches, and the laws and regulations pertaining to the possibility of aggravation of a pre-existing disability are not for application. See VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). The Veteran's service treatment records do not show any relevant complaints, findings, or treatment, and the Veteran's psychiatric condition was clinically evaluated as normal upon separation from service in March 1991. He denied having any relevant symptoms at that time. The earliest medical evidence of PTSD is found in VA reports dated in 2006. There is no competent opinion in support of the claim. The only competent opinion is found in the December 2012 VA DBQ, and this opinion weighs against the claim. The examiner concluded that the Veteran's PTSD is related to preservice stressors, i.e., childhood abuse. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and it is accompanied by a sufficient explanation and findings. Prejean; Neives- Rodriguez. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's service treatment reports and post-service medical records have been discussed. The Veteran is shown to have a history of childhood abuse, and there is no inservice evidence of treatment for psychiatric symptoms, or until about 15 years following active duty service. The only competent opinions of record weigh against the claim. Given the foregoing, the Board finds that the evidence outweighs the appellant's contentions to the effect that he has an acquired psychiatric disorder, to include PTSD, due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has not indicated that such records exist, and all pertinent records have been obtained. In this regard, during his hearing, held in February 2016, it was agreed that the record would be held open for 60 days to allow him to submit additional evidence, and additional VA treatment records were subsequently obtained. The Veteran has been afforded an examination, and an etiological opinion has been obtained. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs