Citation Nr: 1751484 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-41 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and adjustment disorder. 2. Entitlement to service connection for hypertension, to include as presumptively service-connected and as secondary to an acquired psychiatric disorder. 3. Entitlement to a total disability evaluation based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from January 1969 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A January 2010 rating decision denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran perfected his appeal with a September 2010 VA Form 9. In December 2011, the Veteran testified before Veterans Law Judge (VLJ) James March regarding the issue of entitlement to service connection for an acquired psychiatric disorder. A transcript of that hearing is of record. A May 2012 rating decision denied the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and hypertension and entitlement to TDIU. The Veteran perfected his appeal with an August 2013 VA Form 9 and requested a Board hearing. In a September 2014 decision, the Board remanded the claim of entitlement to service connection for an acquired psychiatric disorder for a Board hearing. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In February 2015, the Veteran testified before VLJ Wayne Braeuer regarding service connection for an acquired psychiatric disorder. A transcript of that hearing is of record. In December 2016, for reasons explained in that decision, this matter was again remanded for a hearing. In April 2017 the Veteran testified before the undersigned VLJ. A transcript of that hearing is of record. At that hearing the Veteran's representative requested that the record be held open to allow time to submit private medical evidence. A private psychiatric evaluation and records of treatment for hypertension have been added to the record. Because VLJ Braeuer left the Board before this case could be decided, the Veteran was entitled to have another hearing before a third Judge who would join the panel deciding the case. The Veteran waived the right to that hearing in a letter dated August 21, 2017. For the reasons below, the Board finds that the preponderance of the evidence is against each of the Veteran's claims and each of his claims must therefore be denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorders, diagnosed as depressive disorder, anxiety disorder, and adjustment disorder, did not begin in service, were not caused by service, and were not worsened beyond their natural progression by service. 2. The Veteran's hypertension did not begin in service and was not caused by service. 3. The Veteran's hypertension did not manifest to a compensable degree within one year of his separation from service. 4. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The Veteran's acquired psychiatric disorders were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The Veteran's hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2017). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for an acquired psychiatric disorder and hypertension. He is also seeking a TDIU based on his service-connected disabilities preventing him from securing or following a substantially gainful occupation. This decision will address each of these claims in this order, as each claim may depend on the one before it. I. Acquired Psychiatric Disorder The Veteran has been diagnosed with and treated for various related acquired psychiatric disorders including dysthymia, depression, anxiety, and adjustment disorder. This is reflected in multiple medical records and is not disputed by VA. Therefore, the presence of a current acquired psychiatric disorder is shown. The Veteran must now show that, at least as likely as not, there is nexus between his current condition and an event, disease, or injury in service. i. Evidence The Veteran's Service Treatment Records (STRs) are silent for complaint, diagnosis, or treatment of acquired psychiatric disorders including anxiety, depression, and adjustment disorders. However, his personnel records indicate that he went absent without leave (AWOL) four times over the course of a single year in service, sometimes waiting for arrest and other times turning himself in. The only STR indicating any mental health concern in service is from December 1969, about one month before the Veteran was discharged as unfit for service. The Veteran complained of being unable to get along with anybody and being very uncomfortable with people teasing him about his Polish heritage. He indicated that he had been allowed to do whatever he wanted since age sixteen and had never experienced anything like the military. He stated that whenever he felt he could no longer adjust to the military way of life he would run away. The doctor noted no apparent thought disorder but listed a diagnosis of "immature personality" and a recommendation that there was no contraindication to administrative separation. The Veteran has described his interaction with this doctor as seeking help and instead being recommended for discharge. However, personnel records indicate that the Veteran had already been informed of his possible administrative discharge before this evaluation and the doctor's notes indicate that the Veteran was aware of these proceedings and was only worried about a "negative discharge." The doctor's recommendation also seems to indicate that the purpose of the evaluation was merely to establish whether there was a medical reason to change the nature of the discharge that had already been administratively recommended. From his separation from service in early 1970 until 2009, the Veteran has no records of mental health treatment. However he has stated that over the years he had attempted suicide two times, including by swallowing pills after a fight with his girlfriend in 1970 or 1971 and by self-inflicted gunshot in 1978. After these incidents, as well as around the time of his divorce, the Veteran sought counseling from his priest and a court-suggested family therapist, respectively. In 2009, the Veteran was laid off from his long time place of employment and sought treatment for depression at a religious counseling center. He attended twenty sessions from 2009 to 2011. Although the Veteran indicated on his intake form that he thought his problems were related to the military, no medical notes discuss his military experiences. Although the Veteran testified that someone there told him his problems were related to service, the medical notes indicate a diagnosis of adjustment disorder with depressed mood related to job loss and family struggles. A private psychological evaluation from December 2011 diagnosed the Veteran with adjustment disorder with depressed mood. The evaluator met with the Veteran three times and performed diagnostic testing. The evaluation notes do not contain any discussion of the Veteran's military experience. A January 2012 letter from the Veteran's primary care doctor stated that she had been treating him for anxiety and depression, but did not indicate a cause for either condition. Treatment notes from the same provider include no indication of a cause for either condition. A May 2015 private psychological evaluation included testing and a review of the Veteran's childhood, service, personal, and work history. The evaluator diagnosed dysthymia, chronic, mild. The evaluation listed a stressful event of being ridiculed for being Polish and red haired but did not offer an explanation linking the diagnosis to the Veteran's service. A May 2016 VA examiner reviewed the claims file and met with the Veteran. This examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood. The examiner opined that this condition was less likely than not etiologically related to his military service. The examiner explained that immature personality was not a recognized medical diagnosis but would have been considered a type of preexisting condition in 1969. Regarding the Veteran's ongoing mental health concerns, the examiner noted that all of his serious symptoms developed close in time to post-service stressful events, including relationship issues, divorce, a layoff, and caring for his disabled daughter. A July 2017 private psychological evaluation provides the only independent opinion supporting the Veteran's claim for service connection for his acquired psychiatric disorder. This private examiner reviewed the Veteran's service records and interviewed the Veteran for an hour and a half. He noted that the Veteran claimed to have first felt hopeless and trapped in bootcamp, followed by going AWOL four times because he couldn't swim and was afraid of being trapped on a boat. This examiner also noted that immature personality is not a genuine diagnosis and diagnosed the Veteran with persistent depressive disorder, severe, with mood-congruent psychotic features. He opined that this condition appeared to have its onset in the Veteran's late teens, as the Veteran appeared to have intact functioning prior to service. He also opined that it was more likely than not connected to service by virtue of both timing of onset of symptoms and worsening beyond an expected course by the bullying and teasing experienced in the military. The Veteran has testified at three hearings. He has consistently maintained that he endured teasing and harassment from his peers in bootcamp, including verbal mockery for his heritage and red hair and being hit in the genitals in the showers. He also consistently described not being able to swim and thinking he would drown the first time he had to jump into water over his head. Although he has maintained that he had no mental health concerns prior to service, at his February 2015 hearing he mentioned having phobias including fears of heights, water, and closed places. He consistently described going AWOL because of his fear of being trapped on a boat, still not able to swim more than a dog paddle. ii. Analysis As the Veteran has already shown a current acquired psychiatric disorder, the crux of this claim is the conflicting evidence regarding a nexus between his current disorder and any disease, injury, or event in service. For the reasons that follow, the Board finds that the preponderance of the evidence is against the Veteran's claim that there is a nexus between his current disorder and any disease, injury, or event in service. Regarding his service personnel and medical records, the Board notes that the only time the Veteran claims to have reported any mental health concerns was when he was already being administratively discharged and the record seems to indicate that this meeting was less for treatment than to rule out any medical reason that could change the nature of his discharge. Both the VA examiner and 2017 private examiner agree that the resulting "immature personality" diagnosis was not a real medical condition. It appears to be simply the doctor's description of the Veteran's reaction to the restrictions of military life after being able to whatever he wanted since the age of sixteen. The Board also notes that the symptoms reported to that doctor included having trouble relating to people who were actively hostile to him and running away from something that scared him. While the lack of more serious in-service symptoms or treatment is not dispositive, the Board can and will consider it along with other evidence. Without records, the Board has only the Veteran's description of the counseling he sought between 1970 and 2009 to rely on. The Board notes that each counseling period described by the Veteran was tied to a significant post-service stressful event including fighting with his girlfriend, fighting with his wife, suicide attempts linked to those failing romantic relationships, court suggested post-divorce family therapy, and being laid off from his job of over three decades. Even though the Veteran claims his disorder is the result of his experiences in service, his counselors made no reference to any inservice events as the cause of his disorder. He did say that his religious counselor from 2009 to 2011 told him this, but the notes in the record reflect that only the Veteran seems to have mentioned his service, while his counselor was concentrated on more recent family and work concerns. Before 2009 there is nothing in the record resembling a nexus opinion linking the Veterans symptoms to his service. The Board notes that the December 2011 private evaluator met several times with the Veteran and felt comfortable offering a diagnosis without even mentioning the Veteran's service. The May 2015 private evaluation is not probative either way, as it offers a diagnosis but no etiological opinion or explanation. The July 2017 private evaluation does carry some probative weight, as it provided a positive nexus opinion supported by an explanation, based on the alleged timing of the Veteran's onset of symptoms. However this examiner failed to address the Veteran's description of fearing water, heights, and closed places at least as early as his first swim attempt. It is not at all clear that these fears suddenly materialized in service. As the Veteran's most obvious acting out in service was his multiple AWOL charges, which the Veteran attributed to being afraid of being trapped on a boat and unable to swim, this is a glaring omission that limits the probative weight of this examiner's opinion. Furthermore, this examiner did not explain why he felt the Veteran's claimed in-service feelings of being trapped and hopeless rise to the level of a psychiatric disorder, as opposed to a reasonable reaction to an unpleasant situation. Because of these deficiencies, the July 2017 private examiner's opinion is of limited probative value. The Board finds that the May 2016 VA examiner's opinion has the most probative value. In addition to reviewing the claims file and meeting with the Veteran, the examiner provided a negative nexus opinion that was well supported by the record. As described by the VA examiner, the Board notes that each of the Veteran's periods of psychiatric concern can easily be causally linked to stressful post-service events. Until the 2017 private opinion, with the deficiencies described above, no competent medical evidence supported the Veteran's claim. The Board finds that the VA examiner's opinion provides an opinion that better matches the facts in the record and therefore carries more probative weight than the 2017 private opinion. The only other opinion of record is that of the Veteran. He asserts that his acquired psychiatric disorder is caused or aggravated by his service. In many instances, laypersons are competent to provide opinions regarding the etiology of a disorder. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the reasoned opinion of medical professional is more probative than the Veteran's lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, that opinion is afforded more weight. The Board therefore finds that the evidence weighs in favor of a finding that the Veteran's acquired psychiatric disorder is not related to his service. II. Hypertension The Veteran is seeking service connection for hypertension. The record includes a 2012 letter from the Veteran's primary care doctor stating that he has been diagnosed with and treated for hypertension. This is not disputed by VA. Therefore, the presence of hypertension is shown. For rating purposes, diagnosing hypertension requires confirmation by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, DC 7101, Note (1) (2017). For rating purposes, hypertension is defined as diastolic pressure predominantly 90mm or greater and isolated systolic hypertension means systolic pressure predominantly 160mm or greater with diastolic pressure under 90mm. Id. In order to be compensable, diastolic pressure must be must be predominantly 100mm or more, or systolic pressure must be predominantly 160mm or more, or the Veteran must have a history of diastolic pressure at 100 or more, which requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. i. Presumptive Service Connection In order to be presumed service connected, the Veteran's hypertension must have developed to a compensable degree within one year of his separation from service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2017). The record contains no blood pressure readings from the year following the Veteran's separation from service. The Veteran does not claim to have been diagnosed with hypertension or prescribed medication to control his blood pressure during this period. The record does not contain any competent medical opinion claiming that the Veteran had hypertension during this period. The Veteran has not described suffering from any symptoms of hypertension during this period, and although he has stated that he thinks his blood pressure may have been "a little high there" when he went to see a doctor, and that he "showed signs of it back then," he has not indicated any sign that manifested during the year after his service. Without any blood pressure readings, medical records, or indication of symptoms or treatment during the year after his separation from service, the preponderance of the evidence supports a finding that the Veteran's hypertension is not presumptively connected to service. ii. Direct Service Connection The Veteran's STRs contain blood pressure readings from his entry exam in October 1968, an in-service exam in October 1969, and a pre-separation exam in January 1970. The readings were 130/78, 130/70, and 130/70, respectively. The record contains no complaints, symptoms, diagnosis, or treatment of hypertension during the Veteran's service. The record does not contain any competent medical opinion claiming that the Veteran had hypertension in service. While, as noted above, laypersons may sometimes provide an opinion as to the etiology of a condition, the mere assertion that he "showed signs of it back then," without specifying what type of sign, or what time period is "back then," cannot be sufficient evidence to show a condition either beginning in service or having a nexus to some disease, injury, or event in service. Considering that the preservice examination and two examinations in service each show readings below the required level for diagnosing hypertension, the weight of the evidence favors denying the Veteran's claim for direct service connection for hypertension. iii. Secondary Service Connection The Veteran claimed this condition as secondary to his acquired psychiatric disorder. Since the Board is denying the Veteran's claim for service connection for an acquired psychiatric disorder, hypertension cannot be found to be service connected secondary to that condition. 38 U.S.C.A. §§ 501, 1110 (West 2014); 38 C.F.R. § 3.310 (2017). III. TDIU A TDIU may be granted only if the Veteran's service connected disabilities, considered alone, would prevent him from securing or following a substantially gainful occupation. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2017). The Veteran has never been service-connected for any condition and the Board is denying his claims for service connection for an acquired psychiatric disorder and hypertension. Therefore, the Veteran still has no service-connected disabilities and cannot qualify for a TDIU. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and adjustment disorder, is denied. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, is denied. Entitlement to a TDIU is denied. ____________________________ _________________________ JAMES L. MARCH R. FEINBERG Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs