Citation Nr: 1737124	
Decision Date: 09/05/17    Archive Date: 09/19/17

DOCKET NO.  11-16 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, cluster B traits, and schizophrenia.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1983 to January 1987 and from October 1990 to May 1991, including in the Southwest Asia Theater of Operations.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. 

The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2011 by a Veterans Law Judge (VLJ) no longer employed by the Board. A transcript is associated with the claims file. 

In January 2012, the Board reopened this previously denied claim and remanded it to the RO via the Appeals Management Center (AMC) for further development. The claim was then remanded again in April 2014. 

In March 2016, the Board remanded this claim to schedule a Board hearing. The Veteran did not appear for the scheduled hearing. In September 2016, the Board determined that the Veteran had good cause for missing the prior hearing, and the claim was remanded again to schedule a new hearing. The requested hearing was conducted in November 2016 by the undersigned VLJ. The transcript of the hearing is of record.  The Veteran's case was remanded for additional development in April 2017.  The Veteran's case has been returned to the Board for further appellate review. 

The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDING OF FACT

The probative evidence of record does not show a diagnosis of an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits, and schizophrenia during the pendency of this claim.


CONCLUSION OF LAW

The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits, and schizophrenia have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In April 2017, the Board remanded the case for additional development. The Board finds that the RO has substantially complied with the remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 
II. Service Connection 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby.  38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303(a).

Generally to establish entitlement to service connection, a Veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or (2) where the condition noted during service is not in fact shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b) (2016); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Factual Background and Analysis

The existence of a present disability has not been established through the Veteran's medical treatment records and examination reports produced during the course of his appeal. Most critically, the VA PTSD examinations conducted in April 2011, February 2012, and May 2014 and an April 2017 VA medical opinion indicate that there is no probative credible evidence that the Veteran meets the criteria for a diagnosis of an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits or schizophrenia. 

STRs indicate that the Veteran was psychiatrically normal upon entrance into and at separation from service. An August 2001 VA treatment record indicates that the Veteran had a psychiatric history of PTSD, anxiety and depression. The Veteran reported that he served in Bosnia and Saudi Arabia and that his duties included clearing bunkers looking for enemies; and working as a mechanic and as an engineer. The Veteran was also a prisoner-of-war (POW) guard. The Veteran's claimed war time experiences included: fear of dying and seeing casualties. The Veteran endorsed having flashbacks; that he would take cover whenever he heard loud sounds, especially fire crackers, and that he had auditory hallucinations. The Veteran also complained of nightmares, interrupted sleep, that he did not like to leave the house, and that he experienced paranoia, especially in crowds.

Since separation, the Veteran has had multiple in-patient hospitalizations for mental health and/or substance abuse treatment. The record evidence includes the following periods of hospitalization:  from August 17, 2001 to September 17, 2001 - the Veteran was diagnosed with PTSD, substance abuse; from August 2, 2006 to August 10, 2006 - the Veteran was diagnosed with PTSD, cluster B personality traits, cocaine/alcohol/marijuana abuse, and suicidal/homicidal ideation for reportedly brandishing a gun on his wife; from October 10, 2006 to October 13, 2006 - the Veteran was diagnosed with induced mood disorder, and laboratory testing positive for cannabinoids and cocaine (during which time he completed a recent PTSD program, blamed himself for his brother's suicide in 2000, and reported a history of two significant head injuries and memory disturbances); from May 21, 2008 to July 15, 2008 - the Veteran was diagnosed with PTSD, alcohol dependence, cocaine dependence, cannabis abuse, Axis II cluster B traits, and suicidal ideation; and from March 25, 2009 to March 27, 2009 - the Veteran was diagnosed with adjustment disorder with depressed mood v. major depression in partial remission. 

The Veteran began attending group PTSD therapy sessions in approximately July 2005. An August 2005 mental health note indicates a diagnosis of major depressive disorder and cluster B traits. An August 2008 mental health consultation note documents a diagnosis of Axis I prolonged PTSD by self-report of combat experience; major depression disorder, mild; alcohol and cocaine dependence in early full remission; and cluster B traits. A July 2007 VA treatment note indicates that the Veteran had a negative PTSD screen. The Veteran only endorsed yes to 2 out of 4 questions asked during the initial PTSD assessment. 

An April 2010 mental health note indicates that the Veteran reported that his 21 year old son had recently died.  The treatment note also confirmed the prolonged PTSD by self-report of combat experience; major depressive disorder, mild; alcohol and cocaine dependence in early full remission; and cluster B traits diagnosis. 

The Veteran claimed in several statements and during his hearings that his service during the Gulf War "apprehending and detaining Iraqi soldiers" caused his acquired psychiatric disorder. The Veteran stated that he "cleared fox holes and bunkers," destroyed weapons and was exposed to contaminated weapons. The Veteran claimed that he "set up camp in a minefield" and feared for his life. The Veteran also claimed to have witnessed a friendly fire incident that killed 4 soldiers and that he witnessed the death of Iraqi soldiers. During the August 2011 hearing, the Veteran testified that after he returned from Desert Storm, he could not "get along with anyone...did not go anywhere...and thought everyone was out to get him." He testified that he experienced anger, depression, anxiety, night sweats, fatigue and auditory hallucinations. At his November 2016 hearing, the Veteran testified that he saw dead bodies, entered the enemy's bunkers, fired weapons at the enemy and feared for his life.  The Veteran testified that his combat experience caused him to develop schizophrenia. In separate statements, the Veteran's family members and fiancé reiterated the Veteran's contentions regarding his PTSD like symptoms exhibited since separation from military service. 

In April 2011, the Veteran was afforded a VA PTSD examination. The Veteran was diagnosed with schizophrenia, paranoid type. His GAF score was 50. The examination report indicates that the Veteran reported some scattered symptoms of PTSD, but the Veteran's symptoms did not meet the diagnostic criteria for PTSD. The examiner noted that the Veteran's auditory hallucinations and delusions were much more prominent and were suggestive of a psychotic disorder. According to the examiner, the Veteran's depressive symptoms were commonly seen in individuals with psychotic disorders, which probably accounted for the Veteran's prior depression. However, the examiner noted that the Veteran's prior treatment for PTSD did not appear to include review of his actual military records. 

In February 2012, the Veteran was afforded a second VA PTSD examination. The examiner reviewed the claims file, evaluated the Veteran, and determined that the Veteran did not have a PTSD diagnosis that conformed to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria.  The examiner ultimately concluded that the Veteran did not have any mental disorder that conformed to DSM-IV criteria. The examiner opined that based on the interview and records review, the Veteran did not meet the criteria for an acquired psychiatric disorder. The examiner noted that the January 2012 Board decision indicated that treatment records from 2001 to 2005 and from July 2010 were missing from the claims file. Upon further development, the records were added to the claims file and reviewed by the examiner. The examiner reiterated the opinions of previous examiners that the Veteran did not meet the criteria for any mental illness related to his military service. A July 2013 psychiatry liaison consultation note indicates a diagnosis of major depressive disorder v. substance induced mood disorder; history of ethanol abuse, current use; and cocaine abuse. His GAF score was 35. 

The Veteran was afforded another VA PTSD examination in May 2014. The VA examination report indicates that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria.  The examination report also indicates that the Veteran did not have any mental disorder that conformed to DSM-5 criteria. The examiner stated that he did not find enough evidence to warrant a diagnosis of PTSD. The examiner's rational was that the Veteran's treatment notes include references to a diagnosis of PTSD; however, discharge notes from the Veteran's most recent psychiatric in-patient treatment in 2013 do not indicate a diagnosis of PTSD. The examiner noted that the Veteran did not mention any stressors related to Bosnia during examination and that he did not display any emotional response at all when discussing the first Gulf War.  It was the examiner's opinion, that the Veteran was clearly depressed, but that the examiner could not elicit any information specifically linking the Veteran's depression to his military service. The examiner further noted that the etiology of the Veteran's depression is unknown. The examiner opined that there was no sufficient evidence to warrant the diagnosis of a psychotic disorder, and no evidence specifically of schizophrenia. According to the examiner, he could not find evidence of a psychiatric condition related to or exacerbated by the Veteran's service.  The examination was conducted with reference to both DSM-IV and DSM-5 criteria.  

In an April 2017 medical opinion, the VA examiner noted that the Veteran had received some diagnoses of PTSD when seen for mental health treatment; however, at other times when seen for in-patient treatment, the Veteran was not always diagnosed with PTSD. The examiner considered the fact that the Veteran had 3 compensation and pension (C& P) examinations for PTSD and none of the examinations yielded a diagnosis of PTSD, when considering the totality of the record evidence. Similarly, while the Veteran received a diagnosis of schizophrenia in a 2011 C&P examination, the totality of the record does not suggest a diagnosis of schizophrenia. According to the VA examiner, there is no evidence that the Veteran met the criteria for the diagnosis of schizophrenia during his time in service or within 2 years of his discharge from the military.  Thus, there is no evidence that the Veteran met the criteria for PTSD or schizophrenia as related to his military service. It was the examiner's opinion that prior diagnoses of acquired psychiatric disorders were not based upon a review of all of the available records. The examiner further opined that the conclusions reached in prior C&P examinations are considered more reliable assessments because they are based on a greater amount of information.

After careful consideration of the evidence of record, the Board finds that the Veteran does not have a currently diagnosed acquired psychiatric disorder based on the VA examinations conducted in April 2011, February 2012, and May 2014, and the April 2017 VA medical opinion. Thus, the most probative evidence does not reflect that a diagnosis has been provided with respect to an acquired psychiatric disorder. The Board recognizes the Veteran's belief that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits, and schizophrenia. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the Veteran is not considered competent to provide a diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board highlights that competent statements are limited to that which the Veteran has actually observed and is within the realm of his personal knowledge; such knowledge comes to the Veteran through use of his senses-that which is heard, felt, seen, smelled or tasted. See Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he experienced symptoms related to the claimed disability, such as anger, depression, anxiety, night sweats, fatigue and auditory hallucinations. It is not shown, however, that the Veteran possesses the medical expertise necessary to provide a probative opinion on a complex medical matter such as the diagnosis of an acquired psychiatric disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Indeed, the issue of whether a lay person is competent to diagnose a psychiatric condition and opine as to its cause is not unique to veteran's law. See generally Restatement (Third) of Torts: Phys. & Emot. Harm, § 4 (2010) (reviewing evidentiary rulings on proving the existence of emotional harm and its likely causes from several jurisdictions). To the extent that other courts have addressed the weight to be given to lay evidence on this issue, the Board finds the logic and reasoning of these cases useful. Generally, courts have required objective indicia or "some guarantee of genuineness" sufficient to verify the existence of a mental injury or emotional harm. Johnson v. State, 334 N.E.2d 590, 592   (N.Y. 1975). The rationale given for this rule is that mental disturbance is easily simulated. The requirement of objective indicia may be met by clear medical proof of the existence of the claimed injury. The Board concludes that this rule is compatible with the veterans benefits system. VA regulations already require medical proof that psychoses and PTSD are diagnosed in conformity with the medical standards contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder, Fifth Ed. See 38 C.F.R. §§ 3.304 (f), 3.384, 4.125(a) (2015). Although the Board recognizes that a lay person may competently report subjective feelings, the Board looks to the medical evidence of record to determine whether a current psychiatric disability exists and if so, whether it is related to service.  Here, the more probative medical evidence is against the claim.  

Specifically, with regard to the VA medical opinions and the Veteran's purported PTSD, major depressive disorder, cluster B traits and schizophrenia diagnoses, the Board finds the medical opinions of the April 2011, February 2012, May 2014 and April 2017 examiners more persuasive and accords them significant probative value. It is well established that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As such, when reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see Colvin v. Derwinski, 1 Vet. App. 171 (1991).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). The April 2011, February 2012, May 2014 and April 2017 examiners reviewed the Veteran's entire claims file and/or conducted in-person assessments/interviews and referenced both the DSM-IV and/or DSM-5 criteria in rendering their medical opinions. Their medical opinions were supported by adequate rationale and speak to the question at hand, whether the Veteran has a currently diagnosed acquired psychiatric disorder. 

The record evidence does not indicate that the Veteran's prior PTSD, major depressive disorder, cluster B traits and schizophrenia diagnoses were based upon an entire review of all of the available record evidence, or for VA rating purposes, demonstrated that the Veteran's symptoms conformed to DSM-IV or DSM-5 criteria notwithstanding Cohen v. Brown, 10 Vet. App. 128 (1997).  The Cohen presumption is rebutted by the more probative VA examination findings to the contrary.  Most critically, a July 2007 VA treatment note indicates that the Veteran had a negative PTSD screen.  The May 2014 VA examiner noted that the Veteran was "clearly depressed," but that the etiology of the Veteran's depression was unknown. The May 2014 examiner ultimately concluded that there was "no sufficient evidence to warrant a diagnosis of a psychotic disorder" and that there was "no evidence specifically of schizophrenia." The April 2017 examiner opined that the Veteran's prior 3 C&P examinations did not yield a PTSD diagnosis when considering the totality of the record evidence. The April 2017 examiner further opined that "the totality of the record does not suggest a diagnosis of schizophrenia" and that the "prior diagnoses...were not based upon a review of all of the available records." The April 2017 examiner determined that the conclusions reached in the February 2012 and May 2014 C&P examinations were "more reliable because they [were] based on a greater amount of information." As such, the previous acquired psychiatric disorder diagnoses made prior to the April 2011, February 2012, and May 2014 C&P examinations, and the April 2017 medical opinion are afforded no probative value. 

As discussed above, the most probative evidence fails to demonstrate that the Veteran has had an acquired psychiatric disorder at any time during the pendency of this appeal. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. Without competent and credible evidence of a diagnosis of an acquired psychiatric disorder, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333  (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Veteran claimed that he experienced anger, depression and anxiety as a result of his service. However, the persuasive evidence of record does not demonstrate that the Veteran has a currently diagnosed acquired psychiatric disorder. 

In sum, the Veteran has not satisfied the necessary element of a present disability for an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits, and schizophrenia and thus, further discussion of the in-service incurrence or nexus elements is not necessary. Furthermore, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits, and schizophrenia.  


ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, cluster B traits, and schizophrenia is denied. 



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs