Citation Nr: 1751214	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  09-15 179	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include nightmare disorder, anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty in the Navy from December 1974 to January 1979 and in the Air Force from March 2004 to June 2004.  He also was a member of the Air National Guard (ANG) from August 1984 to October 1999, and the Air Force Reserve (USAFR) from November 1999 to June 2006.

The Veteran's claim for service connection for an acquired mental disorder is deemed to encompass all psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Hence, the Board has styled the issues of the case as shown on the title page.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefit sought on appeal.

In November 2010, the Veteran testified at a Board hearing before the undersigned. A copy of the hearing transcript is of record. In August 2011 and May 2014, the case was remanded for further development.  In a decision dated in December 2015, the Board denied the Veteran's appeal, and he appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In a May 2017 memorandum decision, the Court vacated the December 2015 Board decision, and remanded the case to the Board for further appellate review consistent with the Court's decision.


FINDINGS OF FACT

1.  The evidence clearly and unmistakably shows that the Veteran's nightmare disorder existed prior to the period of service from December 1974 to January 1979 and was not aggravated by that period of service.

2.  A pre-existing nightmare disorder was not permanently aggravated during the period of active duty service from March 2004 to June 2004.

3.  Acquired psychiatric disorders, to include anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder, did not have their onset during either period of active duty service, a psychotic disorder did not manifest within one year following either period of active duty service, and these acquired psychiatric disorders are not otherwise related to either period of service.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, to include nightmare disorder, anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307(a), 3.309(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Assist

Prior to issuance of the June 2008 rating decision, via a March 2008 letter, 
VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records, to include those from the ARNG and USAFR, VA and private treatment records, reports of VA and private examinations, and the transcript of the November 2010 Board hearing are in the claims file. Further, the RO obtained all private treatment records identified by the Veteran for which he provided authorization for release to VA. Neither the Veteran nor his representative has asserted that there are additional records to obtain. As such, the Board will proceed to the merits of the appeal.


II. Service Connection

The Veteran claims that service connection for an acquired psychiatric disorder is warranted because, while he had nightmares prior to service, such disability was permanently aggravated during his period of service from 1974 to January 1979. 
At the November 2010 hearing, the Veteran testified that he felt confident that his panic attacks started during his service from 1974 to 1979. He stated he went to see someone because he was experiencing nightmares, which scared him. The Veteran testified that, after service, he first sought treatment in 1995 for panic attacks. He stated he had also sought treatment during his second period of active duty for panic attacks and was given medication. The Veteran stated he was still taking medication for his psychiatric disorders. 

The Board notes that the Veteran has been diagnosed with multiple psychiatric disorders, to include nightmare disorder, anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder. He has had two periods of active duty: from December 1974 to January 1979 with the Navy and from March 2004 and June 2004 with the Air Force. The Board will address each period of active duty separately because each period has its own analysis. 

After careful review of the evidence of record, the Board finds that the Veteran's nightmare disorder clearly and unmistakably pre-existed his first period of active duty service and was not aggravated during this period of service. The Board also finds that the Veteran's nightmare disorder was not permanently aggravated during his second period of active duty in 2004. Finally, as to the other psychiatric disorders, including anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder, these were diagnosed after the second period of active duty and are not related to either period of active duty service, to include the psychotic disorder manifesting to a compensable degree within one year after either period of active duty service. The reasons for these determinations follow.


A. First period of active duty from December 1974 to January 1979

A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence both that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). In determining whether a condition preexisted service, the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must be considered. 38 C.F.R. § 3.304 (b); see Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).

Here, the record contains the Veteran's service enlistment examination; however, it is hardly legible. (02/12/2008 STR-Medical, p. 7) What is clear is that of the list of systems (e.g., gastrointestinal, cardiovascular, respiratory, etc.) provided on the Report of Medical Examination, each system is checked as normal, which includes "Psychiatric." The Report of Medical History completed by the Veteran in December 1974 shows that he denied all psychiatric symptoms at that time. Id. at 82. The Board finds that the presumption of soundness has been implicated, and that the Veteran is entitled to be presumed sound at the time he entered service in December 1974. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). 

The Veteran has conceded that he had nightmares prior to service. Additionally, a VA medical professional has examined the Veteran and reviewed the Veteran's claims file and determined that the nightmare disorder clearly and unmistakably existed prior to this period of active duty. Thus, there is clear and unmistakable evidence that the Veteran had a nightmare disorder prior to service. See Doran, 
6 Vet. App. at 286 (concluding as a matter of law that the presumption of soundness was rebutted by clear and unmistakable evidence consisting of the veteran's own admissions during in-service clinical evaluations of a pre-service history of psychiatric problems); see also Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000) ("All that [38 U.S.C. § 1111] requires is that the evidence, whatever it may be, must lead, clearly and unmistakably, to the conclusion that the injury or disease existed before the veteran entered the service."). The first element required for 
VA to rebut the presumption of soundness is met. 38 U.S.C.A. § 1111; Wagner, 
370 F.3d at 1096.

As to the second element to rebut the presumption of soundness, whether the pre-existing disability was not aggravated during service, the Board finds that the combined lay and medical evidence establish clear and unmistakable evidence that the nightmare disorder was not permanently worsened (aggravated) during service. Although the Veteran has asserted that his nightmare disorder increased in severity while onboard a ship during service and service treatment records reflect that he was seen while onboard a ship with complaints of increased nightmares, the evidence both during this period of service and after service establish that the disability underwent only a temporary aggravation and not a permanent aggravation. For example, in April 1975, he was seen with complaints that he was having nightmares about the ship sinking. However, five days later, it was noted that the Veteran had been seen again and "appears to have made an adjustment." (STRs, p. 56-57) After that, when he was treated for complaints during service, they did not involve psychiatric complaints or complaints related to nightmares. The Veteran's December 1978 separation examination showed that the psychiatric examination was normal. In the Report of Medical History that the Veteran completed at that time, he denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. Id. at 67-69. The Veteran denied these same symptoms in Reports of Medical History that he completed in 1984, 1988, 1990, 1993, and 1998. (03/31/2008 STR-Medical, p. 101, 104, 107, 110, 113) Thus, for a 20-year period following discharge from service, the Veteran consistently denied a history of psychiatric symptoms when completing his Reports of Medical History, a document that requires that the person certify that the information is correct. 

This conclusion is also supported by the November 2011 VA examination report (11/17/2011 VA Examination) with the September 2014/March 2015 addendum wherein a VA clinical psychologist concluded that she was absolutely certain that the nightmare disorder was not aggravated during service. On this note, the Board points out that the examiner determined that the Veteran had anxiety during this period of service, but stated that it was related to the nightmare disorder. She stated that the anxiety the Veteran experienced during service was related to the nightmare disorder and was due to situational stressors, which resulted in increased nightmares, which was a natural progression of the nightmare disorder. She added that the anxiety abated while he was still in service. She stated there was no indication in the chart of any immediate increase of symptoms either in the Navy or in year following discharge, which would indicate that his service was exacerbating the nightmare disorder. She noted that the symptoms were reported in service and were noted to decline as he adjusted to being in the Navy. "This is a natural reaction to a life change for which it is documented that he had full recovery." Thus, the examiner provided a rationale that was based on both medical principles and the evidence in the claims file, which showed that the Veteran adjusted to service in the Navy and stopped complaining of psychiatric symptoms. The examiner concluded it was absolutely certain that the nightmare disorder was not aggravated during service. (09/30/2014 C&P Exam-Mental; 03/25/2015 C&P Exam-DBQ Opinion)

The Board finds that the clinical psychologist's opinion tremendously outweighs the Veteran's lay statement that his nightmare disorder permanently worsened during service. The STRs from both this period of active duty and the STRs in the years following this period of active duty (during his service in the reserves) provide strong evidence of the lack of aggravation during active duty, as the Veteran continuously denied psychiatric symptoms when completing Reports of Medical History in the years following this period of active duty.

The anxiety that the Veteran experienced during this first period of active duty was a symptom of the nightmare disorder and not a separate disorder, as determined by the clinical psychologist.

For all the reasons described above, the Board finds that the evidence, when viewed in total, clearly and unmistakably establishes that the Veteran's pre-existing nightmare disorder did not undergo a permanent increase in severity during, or as a result of, his period of active duty from 1975 to 1979, and the presumption of soundness as to the nightmare disorder is rebutted. As such, the nightmare disorder, which caused anxiety symptoms during service, cannot be found to have been incurred in service, and service connection for a nightmare disorder is not warranted, as it was not aggravated by service. 38 C.F.R. §§ 3.303, 3.304(b), 3.306.

The Board notes that it finds that only the nightmare disorder with anxiety disorder pre-existed service and was not permanently aggravated by service. As to the other acquired psychiatric disorders, including, anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder, the Board concludes that the preponderance of the evidence is against a finding that any of these disorders had their onset during this first period of active duty service, that the psychotic disorder manifested within one year following the Veteran's discharge from this service, or that any of these disorders are otherwise due to this period of service. 

The Veteran has stated that his psychiatric symptoms continued after his service discharge in 1979; however, the evidence in the claims file belie such assertion. For example, as the Veteran completed Reports of Medical History in 1984, 1988, 1990, 1993, and 1998, he consistently and contemporaneously denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. Each of these Reports of Medical History has a coinciding Report of Medical Examination, except in 1998, and psychiatric evaluation at those times were all normal. Thus, for almost 20 years following service discharge, the Veteran denied psychiatric symptoms, and for 15 years following service discharge, trained clinical professionals found that the Veteran was psychiatrically normal. This evidence tends to show that the Veteran did not have a continuing psychiatric disorder(s) or psychiatric symptoms in the years following his service discharge in 1979. Additionally, the VA clinical psychologist determined that these other acquired psychiatric disorders were not related to the Veteran's service. She based this determination on the fact that the Veteran was not diagnosed with these disorders while he was in service, which the record supports.

The VA clinical psychologist in the September 2014 report noted that the Veteran was not diagnosed with depression until 2008, which the Veteran argues is an inaccurate statement. The evidence of record shows that the Veteran was seen in 2003 with psychiatric complaints, which is prior to 2008. However, the 2003 records do not show a diagnosis of a psychiatric disorder versus a report of psychiatric symptoms. The same VA clinical psychologist noted in the 2011 examination report that the Veteran was treated for anxiety in 2004. Thus, it appears that the examiner was distinguishing between psychiatric disorders and psychiatric symptoms. The 2003 and 2004 records do not provide a psychiatric diagnosis but psychiatric symptoms the Veteran reported. See 38 C.F.R. § 4.125 (stating the requirements for the diagnosis of a mental disorder). Additionally, they show complaints by the Veteran involving recent events that caused these psychiatric symptoms versus an event or events that happened decades prior to that time. When examiners have entered diagnoses of anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder, they have not attributed them to the Veteran's service, except for one examiner.

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician - or in this case, therapist, neither is it required to accord it substantial weight. See generally Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Courts have repeatedly declined to adopt a "treating physician rule," which would give preference, i.e., additional or automatic evidentiary weight, to this type of evidence. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Harder v. Brown, 5 Vet. App. 183, 188 (1993); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993).
 
In an October 2008 independent medical opinion, a private doctor found that the Veteran had a panic disorder prior to service, which was aggravated during service. The Board has accorded this medical opinion de minimus value. The examiner based his conclusion that the Veteran had a panic disorder prior to service on the Veteran's own words. (11/03/2008 Medical Treatment-Government Facility, p. 1, 3)

A physician may properly rely on a patient's lay reported history when arriving at a diagnosis or opining on etiology, but the accuracy and reliability of the reported history may be tested.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If [an] opinion is based on an inaccurate factual premise, then it is correct to discount it entirely."). Hence, an opinion is no better than the history on which it is based. Here, as discussed earlier, the Veteran had not previously alleged that this disorder existed prior to service. Contrary to the private examiner, the VA examiner administered psychological testing to the Veteran, which involved his taking the Minnesota Multiphasic Personality Inventory-2 test in 2011. The VA examiner determined that the results were invalid due to suspected exaggeration. In the September 2014 addendum, the clinical psychologist noted the testing results, which she stated made it impossible to determine current levels of impairment due to exaggeration of symptoms. Thus, the Board finds that the Veteran's report to this private doctor that he had panic attacks prior to service was an inaccurate factual history. In light of the fact that the private examiner relied on this inaccurate history, albeit through no fault of his own, the resultant opinion is based on an inaccurate factual premise and-thus, is accorded de minimus, if any, value.

The evidence of record does not show that the Veteran has the requisite medical training to opine that the post-service psychiatric disorders are due to service. See 38 C.F.R. § 3.159(a). Accordingly, the preponderance of the evidence is against a finding that an acquired psychiatric disorder, to include anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder were incurred during the Veteran's first period of service or that the psychiatric disorder was manifested within one year following service discharge.

B. Second period of active duty from March 2004 to June 2004.

As stated above, the Board finds as fact that the nightmare disorder pre-existed the Veteran's first period of service and clearly and unmistakably was not aggravated during service. Thus, because of the finding that it pre-existed the first period of service, it follows that the Board finds that such disorder pre-existed the Veteran's second period of service. The Board finds further that it was not aggravated during that time. 

The Board does not find that the presumption of soundness applies to this second period of active duty. As noted above, the presumption of soundness applies when the Veteran is "examined, accepted and enrolled for service." 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Here, however, the Veteran was in the USAFR beginning in November 1999 and was called to active duty in 2004. The conclusion that the nightmare disorder with anxiety disorder pre-existed service applies to this period of service as well, i.e., it was "noted." A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. 

Aggravation is not conceded, however, where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (providing presumption of aggravation created by section 3.306 applies only if there is an increase during service).

The Board finds that there was no aggravation of the nightmare disorder during this period of service. The record shows that the Veteran was seen in May 2004, wherein he reported a long history of stress-related problems. The Veteran reported that past trials of anti-depressants had not been helpful and he was seeking additional medication. He was examined at that time, but no diagnosis was entered. The examiner noted that the diagnosis was deferred pending further evaluation. There is no record dated after this entry showing a psychiatric diagnosis. (02/12/2008 STR-Medical, p. 43)

At the time the Veteran returned from overseas, he completed a "Post-Deployment" health assessment, which was dated May 24, 2004, which was right before he was discharged from this period of active duty. In this document, he responded, "no," to the question, "Are you currently interested in receiving help for a stress, emotional, alcohol or family problem?" He responded, "None" to the questions of whether he had been bothered in the last two weeks by (1) little interest or pleasure in doing things; (2) feeling down, depressed, or hopeless; and (3) thoughts that he would be better off dead or hurting himself in some way. He also responded, "no," to the questions about whether he had any nightmares, felt numb, was constantly on guard, and tried to not think about situations. (03/31/2008 STR-Medical, p. 34) Thus, while the Veteran sought treatment for psychiatric symptoms during his second period of active duty service, the contemporaneous records show that the pre-existing nightmare disorder was not permanently aggravated during this three-month period of active duty, as the Veteran denied psychiatric symptoms right before discharge, including having any nightmares. This evidence shows a lack of aggravation of the pre-existing nightmare disorder. The Board finds that the evidence shows that his seeking treatment for psychiatric symptoms was not indicative of a worsening of the disorder, but rather, at most, a temporary exacerbation. By the time he was being discharged from service, he was not reporting psychiatric symptoms. The Veteran has not alleged a worsening of the nightmare disorder during this period of service (versus the first period of active duty). There was no aggravation of the nightmare disorder during his period of active duty service.

As to the remainder of the psychiatric diagnoses of anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder, all of these diagnoses were entered after the Veteran's period of active duty in 2004. Thus, there is no question regarding pre-existence with these psychiatric diagnoses. The VA treatment records show that these diagnoses were first entered in 2008, which is contemporaneous with the Veteran's claim for service connection for an acquired psychiatric disorder. In going through the VA treatment records, the VA examiners do not attribute these psychiatric disorders to either period of active duty service. There are a couple of diagnoses of posttraumatic stress disorder (PTSD), but they were entered by a VA social worker. When the Veteran was seen by a VA psychiatrist following the diagnosis entered by the VA social worker, the psychiatrist did not enter a diagnosis of PTSD. Thus, the Board does not find that the Veteran has a confirmed diagnosis of PTSD. See 38 C.F.R. § 3.304(f). The Veteran has not alleged having PTSD due to service. The Board accords more probative value to the psychiatrist's decision not to diagnose PTSD than a social worker, who has less training than the psychiatrist. An opinion may be reduced in probative value even where the statement comes from someone with medical training - or, in this case, training as a licensed social worker, if the medical issue requires special knowledge.  See Black v. Brown, 10 Vet. App. 279 (1997); Guerrieri v. Brown, 4 Vet. App. 467 (1993).

The preponderance of the evidence is against a finding that the Veteran developed any of these psychiatric disorders during or as a result of either period of active duty. In the 2014 addendum to the 2011 VA examination report, the VA clinical psychologist determined that the other psychiatric diagnoses were not related to the Veteran's service. The Board has already explained above why the private medical opinion has no probative value as to the diagnosis of a panic disorder. There is no other competent evidence attributing any of these other psychiatric disorders to service. While the Veteran is competent to report symptoms, the Board has found that he is not competent to state that any reported symptoms were due to a psychiatric disorder that had its onset during service. Additionally, as noted above, the Board finds that his overall statements made in connection with a claim for monetary benefits lack credibility. As noted above, in the 2014 addendum, the 
VA clinical psychologist noted that the Veteran's MMPI-2 test results were invalid and suggested that it called into question the Veteran's self-report of symptoms and that secondary gain should be considered as influencing his self-report. Indeed, the Board's earlier discussion noted the Veteran's contradictory statements. As such, the Board finds that the Veteran's statements regarding his psychiatric symptoms also lack credibility because they are contradicted by the contemporaneous records, as explained earlier, and that above discussion is incorporated here by reference.

Finally, the evidence shows that the Veteran has been diagnosed with an antisocial personality disorder. (11/17/2011 VA Examination, p. 29) Personality disorders are not diseases for VA compensation purposes-i.e., they are not a disability for which service connection may be granted. 38 C.F.R. § 3.303(c); Beno v. Principi, 3 Vet. App. 439, 441 (1992) (stating that the "[r]egulatory authority provides that personality disorders will not be considered as disabilities"). However, "disability resulting from a mental disorder that is superimposed upon ... a personality disorder may be service-connected." 38 C.F.R. § 4.127. However, the record does not reveal evidence of such superimposition in this case. Thus, service connection based on the diagnosed antisocial personality disorder may not be granted.

The Board acknowledges the Veteran's representative's assertions in the Informal Hearing Presentation wherein it is asserted that the Board's prior decision improperly shifted the burden to the Veteran to prove that his pre-existing nightmare disorder increased in severity during his service. The Board rejects this assertion on the basis of the detailed discussion set forth earlier in this decision. The Board notes in passing, however, that he does shoulder that burden as concerns his subsequent periods of service after 1978, for the condition was "noted" prior to those periods. See Wagner, 370 F.3d 1089. 

For all the reasons described above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include nightmare disorder, anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999).



	(CONTINUED ON NEXT PAGE)


ORDER

Service connection for an acquired psychiatric disorder, to include nightmare disorder, anxiety disorder, panic disorder, psychotic disorder, depressive disorder, and bipolar disorder is denied.




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs