Citation Nr: 1751247 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-24 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1995 to August 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran testified at a hearing held at the RO before the undersigned. A transcript of the proceedings has been associated with the record. 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). FINDINGS OF FACT 1. The evidence of record does not establish a current diagnosis of TBI related to injury during service. 2. The evidence of record does not establish that the Veteran has an acquired psychiatric disorder attributable to his period of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C.A.§ 1110 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A.§ 1131 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, the RO has substantially complied with the Board's September 2016 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish service connection, a claimant 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Traumatic Brain Injury The Veteran contends that he suffered a TBI secondary to an in-service incident, at which time he was hit in the head with a heavy metal frame air filter. He stated that glass shattered in his eye and he lost consciousness for up to two minutes. See Board Hearing Transcript, pp. 4-6. Service treatment records reflect that in October 1997, the Veteran was hit by an object at work, causing his glasses to shatter in his eye. Upon examination, his eyes were noted as normal; there was no evidence of a traumatic brain injury or loss of consciousness secondary to this incident. Subsequent treatment records are silent as to any head injuries. The first indication in the record of a possible head injury was in December 2008. Following an incident in which the Veteran fell out of a window, a CT scan of his brain was performed; there was no evidence of trauma and no abnormality of the brain. The Veteran was afforded a VA examination in March 2017. At that time, the Veteran recounted the in-service incident with the air filter. He stated that his current symptoms include schizophrenia, depression, suicidal tendencies, mild memory loss, and insomnia. Ultimately, the clinician found that there was no objective evidence of a TBI. Testing for cognitive impairment revealed normal results in all facets. The clinician acknowledged that the Veteran did have an eye injury during service; however contemporaneous and subsequent treatment records were silent for any head injury. Upon review of the record, the Board finds that service connection for a TBI is not warranted. To date, the Veteran has not been formally diagnosed with a TBI, nor is there any competent evidence of a nexus between any physical or mental abnormality and the in-service eye injury. In so finding, the Board acknowledges the Veteran's lay statements, in which he alleges that he was knocked unconscious in service and has endorsed TBI symptoms since that incident. Although the Veteran is competent to describe what he experienced, the Board finds that the credibility and probative value of his current statements are outweighed by that of the medical records. Service treatment records reflect that the Veteran did have an injury to the eye, likely secondary to the air filter incident he has described. However, the Veteran never reported, and doctors never treated him for a head injury. There is no mention of any loss of consciousness or any other TBI symptoms. In subsequent records, the Veteran never mentioned a history of an in-service head injury and imaging testing of the brain revealed normal results. In any event, the Board also finds that the probative value of the Veteran's statements are outweighed by that of the March 2017 VA examination and accompanying opinion. This examiner specifically reviewed the circumstances surrounding the eye injury and subsequent lay and medical history. The Board notes that the clinician rendered her opinion after thoroughly reviewing the claims file and relevant medical records and examining the Veteran. The examiner noted the Veteran's pertinent history, elicited and described the Veteran's claimed TBI, tested the Veteran's cognitive impairment in all facets, and provided a reasoned analysis of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). In sum, the Board finds that the evidence is against a finding that the Veteran manifests TBI residuals from an in-service injury. Without a valid diagnosis, discussion of the remaining criteria for service connection is not necessary and compensation for a TBI may not be awarded. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder The Veteran avers that he has a current acquired psychiatric disability stemming from his period of service. Service treatment records reflect that the Veteran received periodic treatment for depression from August 1998 through June 1999. In September 1998, the Veteran sought mental health treatment, secondary to issues in his personal life. He stated that his symptoms started about nine to twelve months before, and included a negative outlook on life and change in mental attitude. Upon assessment, the clinician diagnosed moderate major depressive disorder. Subsequently, the Veteran was prescribed Prozac and ordered to attend depression management group classes. In January 1999, during a follow-up for his depression, the Veteran's depressive disorder was noted to be in partial remission; however, the clinician increased his Prozac dosage. In February 1999, the Veteran's major depressive disorder was in nearly full remission. Subsequently, in April 1999, the Veteran did not exhibit any mental health symptoms. An October 2000 mental health care note stated that the Veteran had one episode of major depression in 1998. The Veteran was assessed with a history of major depression, currently euthymic. In December 2006, the Veteran was diagnosed with highly probable, strong, mixed personality disorder; the clinician did not see a major problem on Axis 1, therefore, an acquired psychiatric disorder was not diagnosed. In October 2008, the Veteran reported being depressed for years. He stated that his symptoms worsened in the last six months. His symptoms at that time included difficulty sleeping, poor energy and concentration, and low appetite. Upon discharge, the Veteran was diagnosed with bipolar disorder, not otherwise specified. In December 2008, the Veteran attempted suicide after losing his job. He stated that he felt depressed since his early 20s, and has had steady depression since 2007, but was unable to specify his stressors. The Veteran's mother stated that she noticed the Veteran become more withdrawn and irritable since 2000. The clinician ultimately diagnosed mood disorder. At the August 2010 VA examination, the Veteran was diagnosed with recurrent severe major depression and personality disorder not otherwise specified. The clinician found that the Veteran's current depression was less likely than not related to service. The clinician acknowledged that the Veteran was treated for depression while in service; however, he was treated successfully in service with no evidence of a chronic disability. The clinician went on to say that the Veteran did not exhibit depression symptoms until 2006, when he sought treatment at the VA mental health clinic. In September 2010, the Veteran underwent a state disability mental status examination. The examiner found that the Veteran's symptoms were more consistent with borderline personality disorder or antisocial personality disorder. His symptoms did not meet any criteria for PTSD or any diagnosis under DSM-4. The examiner noted the Veteran's bipolar disorder diagnosis, but found that his symptoms were inconsistent with bipolar disorder as he did not meet the criteria for a manic condition. Most recently, the Veteran was afforded a VA psychiatric examination in March 2017. The clinician diagnosed mixed personality disorder. Symptoms of the Veteran's personality disorder included depressed mood, chronic sleep impairment, difficulty with relationships, difficulty with stress, and delusions and hallucinations. Upon review of the record, the clinician found that the Veteran did not have an acquired psychiatric disability attributable to his period of service. The clinician noted the Veteran's past diagnoses of major depressive disorder and anxiety disorder, but stated that such diagnoses were not current, as there was no evidence of either disability at the present time. The psychiatrist also noted that in the past, the Veteran was diagnosed as bipolar, but stated that this was a misdiagnosis, as was common in individuals with personality disorders. The Board finds that service connection for an acquired psychiatric disability is not warranted. The record reflects that the Veteran did receive periodic treatment during service for depression with a subsequent clinical history of alternative diagnoses and clinician disagreement with the correct psychiatric diagnosis. The Board finds that the most probative evidence on this issue is the March 2017 VA examination which has considered all past diagnoses in light of the entirety of the record that involves mental health treatment spanning almost two decades. This examiner acknowledged symptoms which include depressed mood, chronic sleep impairment, difficulty with relationships, and difficulty with stress which were demonstrated in service. However, based on the entirety of the record, the examiner concluded that these were symptoms of a personality disorder which is not subject to service connection as it is not a disease or injury within the meaning of VA law and regulation. Winn v. Brown, 8 Vet. App. 510, 516 (1996) 38 C.F.R. § 3.303(c). Notably, the clinician rendered a negative nexus opinion upon review of the medical record and examination of the Veteran. The clinician considered the Veteran's lay statements, but reconciled such statements with the evidence documented in the record. Furthermore, she applied medical principles to the facts of the case in support of their conclusions and cited to specific evidence in the record upon which they based their negative nexus. The Board finds that the March 2017 VA examination to be highly probative as to the issue of diagnoses. The clinician, upon thorough review of the record, explained why the Veteran's current symptoms were indicative of a mixed personality disorder and why past diagnoses of depression and bipolar disorder were inaccurate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Of equal probative value is the September 2010 state disability mental status examination. The clinician at that time reviewed the Veteran's medical history and considered the Veteran's lay statements. Based upon medical principles applied to the facts of the Veteran's claim, the state psychiatrist concluded that the Veteran most likely suffered from personality disorder, rather than an acquired psychiatric disorder. In support of her conclusion, the psychiatrist discussed in detail the Veteran's symptoms and explained why the symptoms were more indicative of a personality disorder rather than the previously diagnosed bipolar or depressive disorders. The Board acknowledges the various treatment records which diagnosis the Veteran with both depression and bipolar disorder. The Board affords these diagnoses little probative value. The diagnoses appear to be premised on the Veteran's own subjective reports of his history and symptoms rather than an independent assessment of the Veteran's mental health history. Prior to rendering the diagnoses, the clinicians did not independently review the Veteran's medical history; rather, they supported their diagnoses with the Veteran's own subjective statements and/or previous diagnoses. The only other evidence in support of the current claim consists of the Veteran's own lay statements. As noted above, the Veteran is certainly competent to attest to his observable symptoms. Layno, 6 Vet. App. at 470. However, he is not competent to provide a diagnoses or etiology of his symptoms; such conclusions require medical training and knowledge beyond the realm of immediately observable symptoms. In addition, the Veteran's reports lack credibility. Throughout the record, treating physicians have noted that the Veteran is a difficult historian. At times, he has been unable to provide accurate answers to questions asked in order to adequately render diagnoses and treatment. In light of this, the Board affords the Veteran's lay statements little probative value and find that the credibility of such statements is outweighed by that of the VA examinations of record. Furthermore, the VA examiner acknowledged the Veteran's descriptions of depressed mood, chronic sleep impairment, difficulty with relationships, difficulty with stress in service and concluded that these symptoms were a manifestation of a personality disorder rather than an acquired psychiatric disorder. In conclusion, the record does not demonstrate that the Veteran currently has an acquired psychiatric disability attributable to his period of service. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A.§ 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for TBI is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs