Citation Nr: 1639576 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 10-47 377 ) 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). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service from July 1988 to December 1991. He has another period of active duty service from October 1993 to May 1995, for which he was discharged under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this issue in July 2015. FINDINGS OF FACT 1. There is insufficient evidence to provide a nexus between evidence the Veteran's claimed in-service stressor and his current mental health symptoms. 2. Personality disorders are not subject to service connection and the probative, competent evidence is against a finding that the Veteran has a psychiatric disorder that is causally or etiologically related to active duty service. CONCLUSION OF LAW The requirements for service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). Compliant VCAA notice was provided in June 2008. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Board notes that despite multiple actions by the RO, the Veteran's service treatment records from July 1988 to December 1991 are not of record. The only service treatment records that are available are from his second period of service where he was discharged under other than honorable conditions. When service treatment records, VA records, or records from another government agency are missing, VA has a heightened duty to assist and "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-218 (2005). Nonetheless, the Board notes that various post-service medical records are of record and that VA examinations have been conducted and opinions obtained. The Board also notes that actions requested in the prior remand has been undertaken. Indeed, updated, VA medical records were obtained, and additional VA medical opinions were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Service connection may be established for a 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2015); 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) (2015). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that he developed a psychiatric disorder during his active service as a result of stressors consistent with PTSD. The Veteran has reported that he had to drive past dead bodies while he was in service, and that he had friends who tried to take their own lives during service. The Veteran's significant other, N.S., submitted a statement describing the Veteran's mental health symptoms, specifically his nightmares and his change in character after being discharged from service. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with PTSD, a mood disorder, and a personality disorder. He also received ongoing treatment for substance abuse, although this appears to be in remission. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. As noted, the Veteran's service treatment records during his first period of service are not of record. However, the Board notes that the Veteran's enlistment examination for his second period of service (approximately two years after his first period of active duty service) was normal and showed no evidence of mental health symptomatology. The Veteran has received extensive VA psychiatric treatment. The Board has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The first treatment for a mental health disability following service was in 2004 when he sought treatment through VA for situational stressors. He was prescribed mental health medication, but he consistently denied feeling depressed for several months thereafter. The Board notes that the Veteran has had several inpatient hospitalizations for mental health symptoms, although many of those were related to substance abuse as well. As there is no competent evidence of a chronic condition in service or within one year following discharge from service, competent evidence linking the current condition with service is required to establish service connection. The Board notes that the only opinions of record are negative to the Veteran's claim. In October 2015, pursuant to the Board's July 2015 remand directive, the Veteran underwent VA examination in connection with his claim. At the time the VA examiner noted that the Veteran's symptoms did not meet the criteria for PTSD but that he had diagnoses of unspecified depressive disorder and alcohol and opiate use disorder, in full sustained remission. The VA examiner reviewed the Veteran's described stressors, i.e., that he drove by dead bodies and prisoners of war surrendering, and that he had to talk his friend out of committing suicide; the VA examiner found that these events would not cause PTSD and that the Veteran was not reporting symptoms of PTSD. The VA examiner further reasoned that the Veteran's most significant problem was polysubstance dependence and that there was no connection between his reported stressor, active duty service, and his mood disorder symptoms. In February 2016 the Veteran again underwent VA examination, and at the time the Veteran reported having some situational stressors and having an inpatient hospitalization after the prior VA examination. The VA examiner noted that the Veteran was not presenting with PTSD symptoms and that he had a history of substance abuse, but the VA examiner was unable to provide an opinion regarding a causal relationship between substance abuse and service without resorting to mere speculation. The VA examiner concluded that the Veteran had a diagnosis of borderline personality disorder and depression but based on his history and current presentation it was less likely than not that his unspecified depressive disorder was related to military service. In weighing opinions, the Board affords great probative weight to the opinions of the VA examiner. These opinions are afforded great probative weight because they are based on an examination of the Veteran and a review of the claims file. Moreover, the VA examiner provided sound rationale with references to the Veteran's treatment history to support his findings. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran believes that he has a psychiatric disorder that is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of a psychiatric disorder are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his psychiatric disorder(s) is not competent medical evidence. The Board finds the opinions of the VA examiner to be significantly more probative than the Veteran's lay assertions. Additionally, the Veteran has been diagnosed with a borderline personality disorder and depression during the course of the appeal. Personality disorders are not considered diseases or injuries within the meaning of applicable legislation and are, therefore, not subject to service connection. See 38 C.F.R. § 3.303(c). Moreover, the VA examiner provided an opinion that it was unlikely that the Veteran's unspecified depressive disorder was incurred in or aggravated by the Veteran's military service. As this opinion was accompanied by adequate rationale based on review of the Veteran's service personnel records, it is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board acknowledges that the Veteran has been diagnosed with PTSD. However, the VA examiner noted that based on the Veteran's description of his symptoms, he has not met one of the three criteria needed to establish service connection for PTSD found at 38 C.F.R. § 3.304(f), namely a link between the current symptoms and the claimed in-service stressor. None of the other evidence shows such a connection as well. As such, the Board places greater weight on this analysis of whether the Veteran has ever had PTSD. Thus, the preponderance of the evidence is against a finding of service connection for PTSD. The Board also acknowledges that the Veteran has been diagnosed with several psychiatric disorders other than PTSD, including personality disorder, depressive disorder, mood disorder, and polysubstance dependence. There is no probative evidence that any of the other diagnosed psychiatric disorders are causally or etiologically related to the Veteran's active duty service. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for a psychiatric disorder, to include PTSD. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs