Citation Nr: 1752433 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 06-28 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include aggressive personality disorder and depression. 2. Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Appellant served on active duty from August 1967 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction subsequently transferred to the RO in Baltimore, Maryland. The Appellant testified at hearings before Veterans Law Judges (VLJs) in Washington, D.C. in April 2010 and in November 2014. The VLJs are no longer employed at the Board. In July 2017, the Appellant was given another chance for a hearing; however, he did not respond within 30 days. Therefore the Board will continue review of the appeal. A transcript of each hearing is in the e-file. After remanding the case in May 2010, the Board issued a decision denying service connection for an acquired psychiatric disability and hepatitis C in July 2012. The Appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a June 2014 Order, the Court vacated the July 2012 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board remanded the case in January 2015. Subsequent to the return, the Board denied service connection for hepatitis C and remanded the issue of service connection for a psychiatric disorder in June 2016. The issue of service connection for PTSD is remanded to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The currently diagnosed psychiatric disability, major depression disorder, unspecified, with anxious distress, is not related to active duty. CONCLUSION OF LAW A chronic acquired psychiatric disorder other than PTSD was not incurred as a result of active military service. 38 U.S.C.A. 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant maintains that he has a current psychiatric disorder that had its onset during military service. Military medical history Service treatment records include hospitalization and separation due to aggressive personality. In a February 1968 statement, the diagnosis was aggressive personality, chronic, moderate, manifested by longitudinal history of difficulty in controlling hostile impulses, acting out against authority figures and peer group, homicidal ideation and history of arrests in civilian life. In a subsequent February 1968 statement, M. S., a psychiatrist, indicated that the Appellant was evaluated after breaking a window and attempting to cut his wrists while incarcerated in the stockade in January 1968. In the opinion of the psychiatrist, the Appellant was suffering from depressive reaction but was not psychotic, and therefore was responsible for his actions in January 1968. The examiner found that the line of duty status in reference to the wrist cutting incident should be no. Post service medical history A VA hospitalization record dated in December 2004 indicates the Appellant had a past psychiatric history of depression and chronic hepatitis C being treated with interferon. The examiner noted that the Appellant had been depressed for many years with worsening in the past few years after divorce from his wife. The Appellant lives with his three sons, and having been divorced and unemployed are significant stressors. Diagnosis on discharge was severe major depressive disorder without psychotic features. In a May 2005 statement, the Appellant asserted he had multiple possible exposures to hepatitis C including using water from outside to clean utensils for eating, receiving shots for venereal disease and other inoculations, receiving certain restraint injections due to arrest. He also inferred that his psychiatric disorder began when he was held in detention in isolation and restraints at the age of 17. In an April 2006 letter, F. F., M.D., stated that the Appellant's current diagnosis of major depression, recurrent, continues to be symptomatic despite treatment with medication. He was initially hospitalized with psychiatric issues during his military service and was again hospitalized in December 2004. He has suffered from continued psychiatric problems throughout his life. His current depression could have been caused or exacerbated by psychiatric problems that began during his military service. In an April 2006 VA progress note the Appellant complained of major depression, recurrent, first seen a month ago. He reported he feels depressed due to multiple stressors (financial strain, unemployed and looking for work, raising three sons). The Appellant reported he had significant psychiatric symptoms and a hospitalization as teenager in the military and has suffered on and off with depression over the years. An additional stressor was the death of a good friend in a motor vehicle accident. VA progress notes dated from April 2005 to July 2007 indicate ongoing treatment for depression and hepatitis C. In a March 2006 VA progress note, the Appellant reported he thinks he has been depressed a few other times in his life, initially in the military. He complained of depression with increased sleep, poor focus, low energy, and anhedonia. He reported he has a substance abuse history including heroin, cocaine, marijuana, alcohol and that he has been clean nearly 18 years. During an April 2010 Board hearing, the Appellant asserted that due to three traumatizing incidents in the military he has suffered psychiatrically. He reported beatings, racial harassment, and eventual confinement with no help during or after separation. He stated had a difficult time getting employed after separation and began abusing drugs and alcohol until he found a good job and started counseling. During a June 2010 VA examination, the Appellant complained of depression. After a mental status examination, the diagnosis was recurrent major depressive disorder. The examiner found that while the Appellant exhibited suicidal ideation and had a suicide attempt in 1967, he also reported symptoms worsened in 2003 following loss of employment, diagnosis of hepatitis C and divorce. Evidence of diagnosis of "personality disorder" following psychiatric hospitalization after "cutting wrists" would suggest that the Appellant's psychiatric symptoms are not as least as likely as not related to active service. In an August 2010 VA addendum, the VA examiner reviewed the claims file and determined that there is no evidence of a psychiatric disorder diagnosable on Axis I during service. There is evidence of diagnosable Axis II disorder during service. It is not as least as likely as not that the current Axis I diagnosis and Axis II diagnosis from military service time. In an additional November 2011 VA addendum, a VA examiner determined that it is less likely as not that the Appellant's current Axis I (depression) diagnosis is related to the Appellant's Axis II diagnosis from military service. This opinion is based on thorough review of claims file as well as documented interview with the Appellant. Psychiatric findings documented in the file dated in 1968 indicate an Axis II, not Axis I disorder. The Appellant's current mood is related to current/chronic psychosocial stressors. In January 2015, the Board remanded the Appellant's psychiatric claim in order to obtain an opinion that addressed his in-service suicide attempt and diagnosis of depressive reaction. In September 2015, a VA examiner found that the Appellant did not meet DSM-5 criteria for PTSD as he did not report an event which met Criterion A for a PTSD diagnosis. She diagnosed the Appellant with major depressive disorder, unspecified, with anxious distress, and indicated that no additional mental disorders had been diagnosed. She opined that the Appellant's depressive disorder was less likely than not related to the diagnosis of depressive reaction/aggressive personality disorder made in 1968 and was less likely than not incurred in service. In support of her opinion, she stated that the Appellant's medical records reflected his current diagnosis developed around 2003, after a series of psychosocial stressors. She further stated that at the time of the Appellant's February 1968 in-service suicide attempt, the Appellant appeared to have been experiencing an adjustment disorder/depressive reaction to military stressors, but that those symptoms were less likely than not related to his current depressive episode. She also noted that the Appellant did not return for treatment until 2003, years later, which did not indicate any history of chronic and continuous depressive symptoms. In a June 2016 remand, the Board requested that the RO obtain Social Security Administration (SSA) records. The Board also requested supplemental opinion addressing whether the Appellant's in-service diagnosis was accurate; whether his then-recently diagnosed anxiety disorder was related to service; and that considered his reports of psychiatric symptoms that began prior to 2003. SSA records were received in July 2017, which show that the Appellant applied for benefits in 2006. The medical records associated with this claim include a diagnosis of major depression disorder. The Appellant reported that his psychiatric problems began on 2002. A VA psychologist examined the Appellant in August 2016 and provided an opinion, in which she stated: It is less likely than not that the in-service psychiatric symptoms diagnosed as aggressive personality, chronic, moderate, were misdiagnosed symptoms of an acquired psychiatric disorder, to include major depressive disorder or anxiety disorder. Symptoms described in the military medical record are suggestive of a personality disorder- possibly antisocial personality disorder-though the veteran does not currently carry a personality disorder diagnosis. Symptoms described were not suggestive of an anxiety or depressive disorder. While the veteran may have experienced a symptom of depression at that time (specifically the suicidal gesture) and was diagnosed with "depressive reaction", this does not mean that he met criteria for a Depressive Disorder. Depressive Disorders include a spectrum of symptoms (not only one symptom); these symptoms were not described or outlined in the military medical record. The veteran does not currently carry a personality disorder diagnosis; this writer cannot speculate as to why his current providers have not made this diagnosis. It should be noted however that a current absence of diagnosis does not equate with an absence of symptoms. As noted in the original opinion, it is less likely than not that the veteran's current diagnosis of Major Depressive Disorder, Unspecified, with Anxious Distress was caused by or otherwise related to any incident of service. It should be noted that after discharge from the military, the veteran did not return to mental health treatment until 2003 which was years later and thus would not indicate any history of chronic and continuous depressive symptoms. Additionally, current depressive symptoms appear more related to current psychosocial stressors. There is no evidence that the February 1968 incident and diagnosis of Depressive Reaction/Aggressive Personality Disorder are related to the current depressive symptoms. The veteran reported that he attempted suicide in 1980s; again however, there is [no] documentation related to this event and no evidence that the attempt was related to a military event which occurred 10+ years earlier. The RO requested an addendum opinion that specifically addressed whether it is it at least as likely as not that the Appellant's major depression or anxiety is related to any part of his service, specifically considering and discussing the Appellant's reports during mental health treatment of feeling depressed "on and off" since service. In an addendum in February 2017, she added: It is impossible to state without resorting to speculation, whether or not "Aggressive Personality" was a misdiagnosis or not. This diagnosis was made over 40 years ago and was based on a diagnostic system which is no longer in existence at the present time. The veteran's current diagnosis of Major Depressive Disorder, Unspecified is less likely as not related to service for reasons explained in the original opinion. The veteran reports feeling depressed "on and off" since service; however, a subjective feeling of depression is not equivalent to a DSM clinical diagnosis of depression. There is no evidence that the veteran's current symptoms of depression are related to his period of military service. As noted in the original opinion, it is less likely than not that the veteran's current diagnosis of Major Depressive Disorder, Unspecified, with Anxious Distress was caused by or otherwise related to any incident of service. It should be noted that after discharge from the military, the veteran did not return to mental health treatment until 2003 which was 30+ years later and thus would not indicate any history of chronic and continuous depressive symptoms. Additionally, current depressive symptoms are related to current psychosocial stressors. There is no evidence that the February 1968 incident and diagnosis of Depressive Reaction/Aggressive Personality Disorder are related to the current depressive symptoms. Service connection for psychiatric disability other than PTSD Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In this case, the Appellant meets the first (current disability) and second (in-service injury) requirements of the service connection claim analysis. Unfortunately, however, in this particular instance the most probative-meaning competent and credible-evidence is against this claim for a psychiatric disability other than PTSD. The VA psychologist in 2016 (and 2017 addendum) found that it was less likely than not that the diagnosed psychiatric disability is related to military service. She considered the Appellant's complete medical history as well as his account of his inservice and post service symptoms. She acknowledged the inservice references to aggressive personality and depressive reaction in February 1968. She noted that the reasons were not clear from the record as to the inservice diagnosis of aggressive personality due to the extended period of time of 40 years and the outdated diagnostic system. She further acknowledged the Appellant's report of post service symptoms to include overdoses, but indicated that any post service symptoms were not related to military service stressors. Further, she considered the fact that there was at least a 35 year gap in the medical records. She noted that the Appellant reported that he did not seek any medical professional help for his psychiatric until he sought VA treatment (which according to the record is in 2003-2004). She concluded that chronicity of psychiatric disability was not established in the military or after his discharge from service. The Board gives greater probative weight to the report and opinion of this evaluating VA professional because of the consideration of the Appellant's pertinent medical and other history-as accomplished by reviewing the evidence in the e-file, but more so based on the discussion of the underlying rationale of the opinion, which instead is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). This examiner also has medical expertise, which is another relevant consideration adding to this opinion's greater probative value. The Board notes that the VA examiner partially relied on the fact that the Appellant has no documented psychiatric treatment since military service. In this regard, the Appellant has provided inconsistent statements regarding his post service symptoms and treatment. As noted above in VA examinations reports the Appellant has indicated a history of overdoses in the 1980's. However, in the SSA records he reported that his symptoms began in 2002. As such, the probative value of his reports of psychiatric symptoms and treatment is diminished. Moreover, the Board considers the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. Although the VA compensation examiner acknowledged the Appellant's in-service psychiatric treatment, she just ultimately concluded that the Appellant's current psychiatric disability was not a consequence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board has also considered the fact that there is no medical opinion in the file refuting the VA examiner's unfavorable opinion, and, again the Appellant's lay statements are insufficient to rebut this opinion given their lessened probative value. For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. ORDER Service connection for a chronic acquired psychiatric disorder including major depression disorder, unspecified, with anxious distress, is denied. REMAND In June 2016 the Appellant was afforded a VA examination for PTSD. The examiner found that the Appellant did not have a diagnosis of PTSD that conformed to the DSM-V criteria. She noted that the Appellant did report an incident which met "Criterion A" for PTSD. The examiner did not provide any rationale for her conclusion that the Appellant's reported physical assault did not meet the criteria of the DSM-V and support a diagnosis of PTSD. A clarifying addendum opinion is required. The RO has obtained the Appellant's military personnel record; however, it is not clear if there are any additional records that pertain to his arrest and incarceration to support his allegations of a physical assault. See stressor statements received in July 2007, November 2007, and August 2015. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any police/arrest records related to this incident that Appellant reports occurred in November 1967 in Fort Bliss, Texas. See stressor statements received in July 2007, November 2007, and August 2015. 2. The RO should return the e- file to the VA examiner who provided the August 2016 opinion and February 2017 addendum regarding an acquired psychiatric disorder, to include PTSD, or if unavailable, another appropriate examiner, and request an opinion. Following the review of the record, and any necessary examination, the examiner should provide an opinion clarifying whether the Appellant's account of a physical assault during his arrest, meet the DSM IV and/or DSM-V criteria to support a diagnosis of PTSD, if not why? If so, is it at least as likely as not (a 50 percent or higher degree of probability) that the Appellant has a current diagnosis of PTSD related to that specific stressor? If the examiner determines that opinion cannot be provided without an examination, the Appellant should be scheduled for an appropriate VA medical examination. The examiner must explain the rationale for all opinions. 3. Thereafter, readjudicate the Appellant's pending claim in light of the additional evidence added to the record. The Appellant 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 that are remanded by the Board of Veterans' Appeals 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 (West 2014). ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs