Citation Nr: 1751827 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-24 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from February 9, 1979 to March 1, 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; the hearing transcript is of record. The appeal was previously remanded in February 2015 and January 2017. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). "To establish a right to compensation for a present disability, a veteran 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran has current diagnoses of depressive disorder, major depression, and dysthymia. See, e.g., VA treatment record (9/7/2007). An October 2014 private treatment record provides a diagnosis of posttraumatic stress disorder (PTSD); however, the Board finds that this is not a competent diagnosis because the examiner made the diagnosis based on the Veteran's account of an in-service stressor which, as will be discussed further below, the Board finds did not occur. See 38 C.F.R. §§ 3.304(f), 4.125(a). The record contains evidence that the Veteran's current psychiatric disorders may be related to an in-service incident and that they also may have pre-existed service. The Board will address each factual situation individually. First, the Board will describe the objective evidence shown by the Veteran's service records. The Veteran served on active duty in the U.S. Marine Corps from February 7, 1979 to March 1, 1979. On his enlistment examination report, the examiner checked "no" next to the box querying whether the Veteran had psychiatric issues. On the Report of Medical History completed by the Veteran in conjunction with the enlistment examination, the Veteran checked "no" next to the boxes querying "depression or excessive worry" and "nervous trouble of any sort." On February 15th, he received immunization shots for influenza, polio, meningitis, and adenovirus. A treatment record dated February 20th, shows that he reported a "mental state" and that he could not "take training." He reported a myriad of complaints from a vague reference to medical problems, which were non-specific to his desire to jump the fence and leave training. The examiner noted that although he was somewhat secretive to possible or suggestive symptomatology, there was no overt evidence of a thought disorder and there was no psychiatric diagnosis. A treatment record dated February 21st shows that the Veteran was experiencing a possible allergic reaction to the immunization shots which manifested in general malaise. A treatment record dated February 26th shows the Veteran reported he was feeling run down and nauseated. The record indicated that he was currently being treated for a viral staph infection. The Veteran also noted at that visit that "I used to want to be in the M.C. but not anymore." On March 1, 1979 the Veteran was discharged from service. He signed a memorandum indicating that he was physically qualified for separation from active duty and that there were no defects that would disqualify him from performance of his duties and that he did not suffer any injuries or serious illness. His DD 214 shows that he was discharged under honorable conditions and the authority and reason for discharge is noted to be JFG9, which indicates it was a trainee discharge. With regard to an in-service incident, the Veteran asserts that during boot camp he was standing in formation and witnessed his friend fall and hit his head on the ground. See, e.g., April 2014 Board Hr'g Tr. 3-13. He indicated that his friend was taken away and he never found out what happened to him. He felt guilty for not having caught his friend before he hit the ground. He also believed he was treated differently after this incident by his superiors, as if the incident was his fault. He also believed his race (african american) played a role in this disparate treatment. The Veteran reports that he felt himself change psychologically during service and immediately after discharge, and that he experienced a continuity of symptoms related to the incident, to include nightmares, after discharge. He also reported that he felt different after receiving his immunization shots. He reported that after discharge from service he told one friend L.W. of this incident but otherwise kept it to himself because it was so uncomfortable. The Veteran is competent to relate his in-service experiences and any readily observable symptomatology. The Board does not, however, find him to be a credible witness. Supporting his assertions is the fact that they were, at times, offered during the course of treatment, see, e.g., October 2014 private treatment record, and the fact that they have been relatively consistent. On the other hand, the incident and continuity of symptoms is uncorroborated, whether by service or medical records or lay statements of other individuals. Multiple examiners have described the Veteran as a poor historian. See, e.g., VA treatment records (9/7/2007 and 5/13/2014). His responses to questioning have been described as evasive, vague, tangential, and leaving many question marks. Id; see also June 2015 VA examination report. At times, his thought process has been disorganized. See, e.g., April 2014 Board Hr'g Tr (testimony regarding shooting pool before and after the military was incoherent). The Veteran reported that he told a friend L.W. about the in-service incident shortly after discharge from service but when asked if he could obtain a statement from L.W. he first replied that it was unlikely that his friend would remember but then conceded that he would attempt to obtain a statement anyway; no such statement was ever received by VA. He reported that he received private psychiatric treatment in the 1980s but those records have not been obtained because the facility at which he received the treatment is no longer open. He reported that he received private psychiatric treatment in the 1990s. Those records have been obtained and the earliest record from March 1995 shows that he reported no prior psychiatric history, "none never depressed." His treatment at the time was related to current marital and occupational stressors. No mention was made of his military service. For the foregoing reasons, the Board finds the Veteran is not a credible witness, and his assertions regarding the occurrence of the in-service incident and a continuity of symptomatology following service as related to that incident are afforded no probative value. With regard to the theory that the Veteran's current psychiatric disorders pre-existed service, the Board reaches the same conclusion. This theory originates from the Veteran's statements provided in furtherance of medical treatment. A September 2007 VA treatment record shows that he reported experiencing depressed episodes since childhood and emotional childhood neglect by his parents, though no actual physical or sexual abuse. A March 2008 VA treatment record notes that he was mistreated all his life by family members. In contrast, a March 1995 private treatment record shows that he reported no prior psychiatric history, "none never depressed." His February 1979 Report of Medical History also shows that he reported no prior history of "depression of excessive worry" or "nervous trouble of any sort." In short, the Board finds that the Veteran's statements regarding his depressive condition and/or symptoms being a pre-existing condition are contradictory. Given this and the above discussion regarding a lack of credibility, the Board finds that these statements are also afforded no probative value. Any determinations based on the validity of these statements, to include those of the June 2015 and May 2017 VA examiners, are invalid. Because these statements have no probative value, there is no evidence supporting the existence of a pre-existing psychiatric condition and the presumption of soundness does apply to this claim. 38 U.S.C.A. § 1111. Accordingly, the evidence shows that the Veteran attempted to leave basic training and was subsequently discharged from service. On evaluation prior to discharge the Veteran complained of a "mental state" and reported that he could not "take training." The examiner noted that although the Veteran was somewhat secretive to possible or suggestive symptomatology, there was no overt evidence of a thought disorder and there was no psychiatric diagnosis. Another treatment record showed the Veteran reported that "I used to want to be in the M.C. but not anymore." The Board finds the Veteran's in-service actions, statements, and the statements of the examiner to be sufficient to indicate that there may be a relation between his current psychiatric diagnoses and his military service. The June 2015 and March 2017 VA examination reports, and related addendums, do not adequately address this evidence and the opinions were also authored prior to the Board's evidentiary findings made herein. On remand, a new VA medical opinion should be obtained concerning the etiology of the current psychiatric disorders. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following actions: 1. Obtain a VA medical opinion concerning the etiology of the Veteran's current psychiatric disorders. The opinion must be authored by a VA psychiatrist or psychologist. The entire claims file, to include a copy of this REMAND, must be reviewed in conjunction with the writing of the opinion. A COPY OF THIS REMAND MUST BE REVIEWED BY THE EXAMINER. THE REMAND CONTAINS RELEVANT EVIDENTIARY DETERMINATIONS AS TO THE CREDIBILITY OF THE VETERAN AND THE PROBATIVE VALUE OF HIS STATEMENTS. The examiner should note that the Veteran has current diagnoses of depressive disorder, major depression, and dysthymia. The examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the current psychiatric disorders were incurred in, or are otherwise related to, the Veteran's active service. This examiner should understand that the Veteran is presumed to have been sound upon entrance to service. In other words, the Board has made a factual findings that his psychiatric disorders did not pre-exist service and relate to his childhood. The examiner's opinion should not solely be based on the fact that the Veteran signed a memorandum at separation from service indicating he was of sound condition. As discussed in this REMAND, other in-service evidence is also relevant. The examiner should also discuss other possible service etiologies for the current psychiatric disorders. A complete rationale must be provided for all opinions expressed. 2. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).