Citation Nr: 1627846 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 11-04 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1978 to July 1979. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied service connection for PTSD and depression. Jurisdiction of the case is with the VA RO in Houston, Texas. In September 2013, the Veteran testified during a hearing at the Houston RO before the undersigned. A transcript of the hearing is of record. In March 2014, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The matter of entitlement of service connection for an acquired psychiatric disorder, other than PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has a diagnosis of PTSD that is based on an in-service stressor for which there is credible supporting evidence. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303(a) (c), 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist In letters dated in July and October 2007, February and April 2008, and February and April 2009, the AOJ notified the Veteran of information and evidence necessary to substantiate his claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R.§ 3.159(c). His service treatment and personnel records were obtained. All reasonably identified and available VA and non-VA medical records have been secured. A VA medical opinion was obtained in March 2012, and the examination report is of record. The Board remanded the claim in March 2014 to obtain records considered by the Social Security Administration (SSA) and a clarifying medical opinion regarding the Veteran's claim for service connection for PTSD. There has been substantial compliance with this remand, as the Veteran's SSA records were obtained, and a VA medical opinion was obtained in June 2014. The June 2014 VA medical opinion is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, provided clinical findings and diagnoses, and offered etiological opinions with rationale from which the Board can reach a fair determination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The June 2014 opinion cured the deficiencies in the earlier opinion; hence, the Board insured that its remand instructions were complied with. The Board finds the duties to notify and assist have been met. Contentions The Veteran contends that he has PTSD related to stressful events during his active service. He testified that, in approximately August or September 1978, he saw a soldier get shot on the rifle range during basic training at Fort Bliss. See Board hearing transcript at page 3. He indicated that a service member died in the barracks after a 25 mile march. Id. at 5-6. The Veteran first received mental health treatment in 2007, while he was at the VA mental center in Tuscaloosa for substance abuse treatment. Id. at 8, 10, 12-13. Thus, the Veteran contends that service connection is warranted for service connection for PTSD. Legal Criteria Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Congenital or developmental defects, refractory error of the eye, personality disorders, and mental deficiency, as such, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2015). To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. See Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). There are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b) (West 2014). If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Just because a physician or other health professional accepted the Veteran's description of his service experiences as credible and diagnosed the Veteran as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233(1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). During the pendency of the Veteran's appeal, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Red. 39,843-39,852 (effective July 13, 2010). The amended regulation, 38 C.F.R. § 3.304(f)(3), provides that lay testimony alone may serve to establish the occurrence of certain in-service stressors involving "fear of hostile military or terrorist activity." As the Veteran has not contended that his stressors include "fear of hostile military of terrorist activity", the revised regulation is not for application in his case. 38 C.F.R. § 3.304(f). Analysis A personality disorder, not otherwise specified (NOS), was diagnosed by the March 2012 and June 2014 VA examiners. Personality disorders are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996); see also 38 C.F.R. § 4.130 (2015). The validity of the exclusion in 38 C.F.R. § 3.303(c) of congenital and development defects from the definition of disease or injury has been upheld. Winn v. Brown, 8 Vet. App. at 510. To the extent that service caused superimposed injury, in other words, aggravated the personality disorder such that an acquired disorder was caused, this is addressed below, as the post-service record does indicate a psychiatric diagnosis. A review of the record reveals that the Veteran has been diagnosed with PTSD by the March 2012 and June 2014 VA examiners. The questions for consideration are whether there is a credible in-service stressor and whether there is a relationship between his PTSD and the in-service stressor. As discussed in the Board's March 2014 remand, the in-service stressors reported by the Veteran include witnessing the accidental death of one or two service members (his testimony on this point has not been consistent) from an inadvertent shooting during rifle training, and witnessing another service member die from heat exhaustion while residing in the barracks at Fort Bliss. Official documentation dated within a two-month time frame of the alleged incidents could not verify the Veteran's report of the shooting death or deaths (12/1/11 VBMS VA 21-3101 Request for Information, p.1). As to the alleged fatal shootings during training exercises, the Board observed that a key aspect of this incident was not consistently reported. Specifically, the Veteran, at various times, reported that one individual was shot and, at other times, reported that two individuals were shot. This inconsistency would not be expected as to such a critical detail of the stressor-in other words, a reasonable person should be able to remember how many people were shot in this manner. Given this, and in light of the negative search response as to this stressor, the Board found that the Veteran was not credible as to his component of the claim. As to the other reported in-service stressor, documentation indicates that a service member died from illness or disease in October 1978 (12/1/11 VBMS VA 21-3101 Request for Information, p.1). While this does not definitively corroborate the Veteran's claim as to witnessing a soldier die in the barracks, the Board resolves doubt in the Veteran's favor. The remaining question is whether the Veteran has PTSD due to the in-service stressor, or another psychiatric disorder related to active service. Service treatment records do not reflect treatment for a psychiatric disorder. The post service medical evidence includes VA medical records, dated from 2004 to 2014. The records reveal that, from March to June 2007, VA admitted the Veteran to a program for treatment of alcohol dependence and polysubstance abuse disorder (VVA 3/7/12 CAPRI (2nd set), p. 17). While hospitalized, an April 2007 Mental Health Physician note indicates that the Veteran reported the presence of tormenting nightmares connected with exposures to emotionally traumatizing violent events he encountered during his life ((4/30/07 VBMS Medical Treatment Record-Government Facility, p.1). These events included witnessing fatal training accidents while in active service, the shooting death of a personal friend, the suicide by hanging of his son-in-law, and another violent death. The psychiatrist noted that the Veteran's nightmares carried a feeling of contemporary reality stronger than dreams and residual feelings from them stay with him. According to this physician, these complaints pointed in a direction of the presence of a post-traumatic stress syndrome A June 2007 VA Vocational Rehabilitation record prepared by a counseling psychologist indicates that the Veteran's psychological problems probably included PTSD (9/24/08 VBMS Medical Treatment Record-Government Facility, p.1). The Veteran saw 3 men die in accidents during basic draining, saw the drug-related shooting death of a friend, and his son-in-law hanged himself. In September 2007, R.M. Ph.D., performed a psychological evaluation in conjunction with the Veteran's SSA disability claim (5/6/14 VBMS Medical Treatment Record-Furnished by SSA, pp. 151-152). The Veteran exhibited some personality instability and spoke of having PTSD symptoms, but the source of the symptoms seemed questionable to the psychologist. Further, the Veteran reported that he was recently hospitalized by VA for treatment of PTSD and drug abuse. According to Dr. R.M., the Axis I diagnoses were substance abuse (reportedly in remission), a mood disorder, NOS, PTSD, and stuttering. In October 2009, Dr. R.M. reevaluated the Veteran who reported that he had PTSD in service and "was seeing death and stuff" (5/6/14 VBMS Medical Treatment Record-Furnished by SSA, pp. 81-82). The Veteran could not explain specifically to what the PTSD was related. The Axis I diagnoses included stuttering, malingering, and a depressive disorder, NOS. In an October 2009 determination, SSA found the Veteran totally disabled primarily due to back disorders and, secondarily, to affective and mood disorders (5/6/14 VBMS Medical Treatment Record-Furnished by SSA, p. 2). He was considered unable to work since December 2008. A March 2012 VA PTSD examination report includes a diagnosis of PTSD that conformed to the DSM IV criteria. The examiner commented that, given the Veteran's history of trauma preceding his military service, it was possible that his PTSD symptoms from the cumulative effects of trauma exposure (before and during military service) did not manifest until after he completed his military service. The Veteran gave a history of violent behavior that worsened following his military service. He estimated three fights prior to active service and engaged in violent behavior including tearing up his house whenever he felt like it and engaging in violence toward his girlfriend approximately twice a month. The Veteran recounted several alleged stressful events in service. During basic training, he witnessed the death of a service member during basic training. The examiner considered this stressor sufficient to support a diagnosis of PTSD. The Veteran also reported that a service member died due to exhaustion. The examiner did not find this stressor adequate to support a diagnosis of PTSD. A third stressor occurred prior to service, when the Veteran's best friend was killed in front him while hunting with friends. The friend was accidently shot by a person playing with his gun. Veteran recalled being shocked, saddened, and angered, and said that he never had another best friend after the incident. The examiner found this stressor adequate to support a diagnosis of PTSD. Other pre-service stressors described by the Veteran included his grandfather being badly injured in a car accident. The Veteran was not present at the time but visited him afterward and was saddened by his grandfather's condition. His grandfather passed away approximately one week after the accident. The Veteran also reported that his uncle was killed prior to the Veteran's military enlistment. The circumstances of his uncle's death remain unknown but Veteran and other family members went to his uncle's house immediately after learning of his death and saw his uncle's deceased body. The Veteran recalled feeling angry at the time. Post-service, the Veteran reported having a gun held to his head many times. He stayed in a hotel upon leaving military service, complained that his room was not up to standard, and the hotel clerk held a gun to his head. This was the first exposure to trauma since his military service and the incident caused the Veteran to fear for his life more than he expected and contributed to poor adjustment after the military. The Veteran last felt his life was threatened was 3 or 4 years earlier when a coworker thought the Veteran stole some of his wrenches from their worksite and held a gun to Veteran s head. The examiner concluded that the three stressors that contributed to the Veteran's PTSD diagnosis were the shooting incident during basic training, seeing his best friend killed during a hunting accident, and having a gun repeatedly held to his head. The examiner remarked that the Veteran cited witnessing the death of a fellow basic trainee as most distressing to him followed by witnessing the death of his best friend (prior to his active service). According to the examiner, it appeared that witnessing the death of a fellow basic trainee was sufficient in accounting for PTSD symptoms and that the Veteran's condition likely worsened due cumulative exposure to stressors. In June 2014, a VA examiner reviewed the Veteran's medical records and conducted a clinical evaluation. It was noted that during boot camp at Ft. Bliss, he and his service members went on 25 mile hike with 60 pound rucksacks. Some service members had heat exhaustion and some could not continue the march. The next morning one of the service members did not wake up. That was something that the Veteran could not let go. The Veteran stated that the barracks had 48 to 60 people in an open bay with bunks. That morning they were told to get up and get ready. The other service member did not get out of the bed. He was drill sergeant W. The SM (sergeant-major?) were rushed outside. They informed the SM that he died. The Veteran stated that he had to have died from exhaustion. A white sheet was pulled over his face. Barracks' members said he died from heat exhaustion, and they were not going to tell them from what he died. In reviewing the Veteran's medical history, the examiner noted that the Veteran last had contact with mental health services in July 2013. The Veteran initially reported that he discontinued treatment because he found no benefit from the care and that his condition did not get better. The examiner observed that medical records reflect that the Veteran complained that no one was willing to help him or provide him care. Later in the interview, the Veteran indicated that he stopped services because he could not afford the gas for transportation and the cost of his copays for his medications, despite being offered waivers for his income previously. The Veteran stated that he took medication daily, though records showed he had no active prescriptions and he reported that he had no outside medical providers from the VA. When confronted over this discrepancy, he stated that he took prescribed medications. He could not name them or the dose or explain when he restarted himself on these medications. The examiner found that the Veteran's description of medication use was not credible. It was noted that, in 2011 or 2012, the Veteran ordered medication. He was taking the old medication and reported that he started taking his old medication since 2012 every day. His girlfriend believed he did not take the medication every day. The Veteran was unable to recall what medication he took. He reported that he took it every day. He started the old mediation. The last time he had medication filled was years ago. The Veteran reported multiple traumas, including pre and post service traumas, and had a history of violent behavior prior to military service including multiple fights. There was a shooting death of a personal friend prior to military service secondary to an accidental shooting when the Veteran was present. There was also a suicide by hanging of his son in law and he was the person who found the son-in-law. Another violent death was reported from April 2007. The Veteran's pre-service traumas include that his best friend was shot in 1972 after they went hunting. Another pre-service trauma was that the Veteran's grandfather died on the highway in 1972 in a motor vehicle accident during a snowstorm. The Veteran was not there at the time of the accident, but they went to the site and he was in the vehicle and all cut up. After service, in 2004, the Veteran's son-in-law hung himself. The ambulance came and they took him to the hospital. He lived about three days. On examination, the psychologist-examiner commented that the Veteran was anxious and mildly agitated from the outset. The Veteran was angry. There were multiple inconsistencies in his report and when compared against his medical record. Questions were often not answered directly and often had to be repeated when details were needed. Diagnoses included PTSD and cocaine dependence in remission. In the VA examiner's opinion, the Veteran had PTSD that was not caused by or a result of his military experiences. The VA examiner noted that the Veteran had reported two stressors while on active duty that he claimed caused his PTSD. One was the report of individuals who died on a rifle training exercise that the Board determined was not credible and cannot be considered. The examiner concluded that the second reported incident, that of a man who died in the barracks at Ft. Bliss, did not meet the criteria for PTSD. According to the examiner, a requirement for PTSD is that the person must be exposed to a traumatic event in which both the following are present: (1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others; and (2) the person's response involved intense fear, helplessness or horror. The VA examiner did not question that an individual died (as the Veteran reported), but stated that it would not be considered a trauma. The examiner reasoned that the Veteran reported being in a large bay where the individual was sleeping, he reported that all soldiers were removed from the area when it was discovered the man was dead. He did not discover the body, he did not perform any cardiopulmonary resuscitation (CPR) or any other assistance related to the body, and reported that someone placed a white sheet over him. The Veteran said that the man died from exhaustion from a march the prior day but, later, acknowledged that they were given no information as to how the man died. Although stressful, the examiner concluded that this incident would not meet criteria as trauma. Moreover, the examiner observed that the Veteran was exposed to a number of traumatic events prior to and after active service, where he was more directly involved and that were far more gruesome than simply someone who died in his barracks. Thus, attributing his PTSD to this more minor stressful event was considered as non-contributory. Additionally, the examiner commented that there were inconsistencies in the Veteran's report as it pertained to events, medication use, and historical information. In sum, the VA examiner opined that the Veteran's PTSD was not caused by or a result of the incident he reported in which a service member who died in the barracks at Ft. Bliss when he was in boot camp. That incident would not meet criteria for PTSD. Taking into account all relevant evidence, the Board finds that service connection for PTSD is not warranted. Although the Veteran has been diagnosed with PTSD, there is no evidence that the condition is related to a verified in-service stressor. The March 2012 VA examiner diagnosed PTSD due, at least in part, to the Veteran's uncorroborated account of witnessing the accidental death of one or two service members in a shooting incident. The Veteran's accounts of this incident have been inconsistent and the service department could not verify his report of the shooting death or deaths. Thus, the Board cannot rely on the examiner's opinion and affords it no weight. While the Veteran's other reported stressor, that of witnessing a service member die in the barracks, is considered credible, neither the March 2012 nor June 2014 VA examiners found that it contributed to his PTSD diagnosis. In June 2014, the VA examiner, a psychologist, opined that the Veteran's PTSD was less likely than not incurred in or caused by an injury in active service. The examiner provided a clear rationale to support the findings. See Nieves-Rodriquez, 22 Vet. App. at 304. The Board finds that this VA opinion weighs against a link between the Veteran's PTSD disability and service because it contains an accurate medical history, a rationale, and is provided by a well-trained expert (e.g., psychologist). The Veteran believes that his claimed disability is related to military service, but this opinion is of little probative value, because he lacks the medical expertise needed to attribute his PTSD disability to active service as opposed to other possible causes. The 2014 VA psychologist-examiner was well qualified to assess the causes of the PTSD disability in the Veteran and provided reasons for his opinion. In light of this, the Board finds that the 2014 VA opinion outweighs the Veteran's belief when considered in view of all pertinent evidence. In sum, when viewing all pertinent medical and lay evidence of record, the Board finds that the competent and credible June 2014 VA examiner's opinion weighs against the claim and there is no competent evidence that the Veteran's PTSD is related to a verified in-service stressor. The preponderance of the evidence is thus against a finding that PTSD is related to active service and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). The matter of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is addressed in the remand, below. ORDER Service connection for PTSD is denied. REMAND In his 2007 service connection claim, the Veteran reported having depression that led to an early discharge (4/30/07 VBMS VA 21-4138 Statement in Support of Claim, p.1). The Veteran has been diagnosed with mood and depressive disorders, NOS, by Dr. R.M. in September 2007 and October 2009, respectively (5/6/14 VBMS Medical Treatment Record-Furnished by SSA, pp. 81-82 and 151-152). The March 2012 and June 2014 VA examiners diagnosed PTSD. It does not appear that the June 2014 VA examiner considered the prior findings of mood and depressive disorders in formulating an opinion regarding a diagnosis of a psychiatric disability, or etiology. Where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate or the previously diagnosed condition had gone into remission. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). See McLain v. Nicholson, 21 Vet. App. 319,321 (2007) (to the effect that requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). In light of the above, an addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the VA examiner who performed the June 2014 examination and completed the Review PTSD Disability Benefits Questionnaire for an addendum opinion. The examiner should review the claims file and his examination report and address the following (a clinical examination should be scheduled if deemed necessary by the examiner): a. the examiner should identify all current psychiatric diagnoses, including a depressive disorder, NOS, a mood disorder, NOS, or another psychiatric disability (other than PTSD) (any such disability shown on examination and in clinical records dated since 2007). b. For each current psychiatric disability (other than PTSD), the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current (present at any time since 2007) psychiatric disabilities (other than PTSD), in whole or part, had their onset in service, are related to his reported in-service stressors, or are otherwise the result of a disease or injury in service. c. In formulating the requested opinions, the examiner should specifically acknowledge and discuss the documented diagnoses of mood and depressive disorders, NOS, rendered by Dr. R.M. in September 2007 and October 2009, respectively. d. The examiner should provide reasons for this opinion. The examiner should discuss the Veteran's post service reports of symptoms. e. The Veteran is competent to report symptoms and observable history. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. f. The absence of evidence of treatment for psychiatric symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 2. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs