Citation Nr: 1752837 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-46 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include "neurosis," psychotic disorder, depressive disorder, major depressive disorder (including with psychosis), anxiety disorder, panic disorder, conversion disorder, insomnia, adjustment disorder, alcohol dependence, and nicotine dependence. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from November 1974 to July 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction was later transferred to the RO in Roanoke, VA. The Veteran was afforded a Central Office (CO) hearing before the Board in February 2012. A transcript of the testimony offered at the hearing has been associated with the record. In February 2017, this matter was last before the Board, at which time it was remanded for further development. At that time, the Board denied the Veteran's claim for service connection of posttraumatic stress disorder (PTSD). Accordingly, this matter is not currently before the Board, and the Board will not address the question of service connection for PTSD in this decision. Rather, the Board's focus is on any remaining psychiatric disabilities indicated by the record. FINDINGS OF FACT An acquired psychiatric disability to include, "neurosis," psychotic disorder, depressive disorder, major depressive disorder (including with psychosis), anxiety disorder, panic disorder, conversion disorder, insomnia, adjustment disorder, alcohol dependence, and nicotine dependence, is not shown to be causally or etiologically related to an in-service event, injury or disease; an acquired psychiatric disability to include "neurosis," psychotic disorder, depressive disorder, major depressive disorder (including with psychosis), anxiety disorder, panic disorder, conversion disorder, insomnia, adjustment disorder, alcohol dependence, and nicotine dependence, did not manifest in service; and psychosis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW An acquired psychiatric disability to include, "neurosis," psychotic disorder, depressive disorder, major depressive disorder (including with psychosis), anxiety disorder, panic disorder, conversion disorder, insomnia, adjustment disorder, alcohol dependence, and nicotine dependence, is not shown to be causally or etiologically related to an in-service event, injury or disease, was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a May 2008 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned Veterans Law Judge in February 2012. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The claim was remanded in February 2017 to afford the Veteran a VA examination The Veteran was provided a VA examination in April 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service connection is granted for disability resulting from disease or injury incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, service connection may also be allowed on a presumptive basis for certain disabilities, including psychosis, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015) (emphasis added). The RO certified the Veteran's appeal to the Board in September 2011 and as such, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim be considered using the DSM-IV criteria. As noted above, in its February 2017 decision, the Board denied entitlement to service connection for PTSD. The Board remanded the matter of entitlement to service connection for an acquired psychiatric disability, other than PTSD, noting assessments of psychosis, depressive disorder, NOS, anxiety disorder, NOS and an adjustment disorder. The Veteran seeks service connection for an acquired psychiatric disability, primarily on the same grounds that he sought service connection for PTSD. He relates an onset of psychiatric and behavioral manifestations to service. He specifically alleges that he has a psychiatric disability other than PTSD as a result of a May 1976 incident where a fellow soldier created a hostage situation in his barracks and ran around the barracks wielding a gun threatening to kill everybody. He has described that the assailant beat several people, and that at one point he had a gun pointed at him. He has explained that the incident also involved the assault of another solder, K.F.H. He initially claimed that the incident took place between June and August 1976, but testified before the Board that the incident took place in May 1976. A review of the Veteran's service treatment records discloses no reports or treatment of any psychiatric disorder. The Veteran received a Medical Board evaluation related to asthma in March 1977, and was discharged due to that condition shortly thereafter. His personnel records and DD 214 indicate 1 year and 23 days of foreign or sea service. However, no personnel record indicates any service in Vietnam, or any combat service. The Veteran contends his stressor occurred at Camp Lejeune, and VA records reflect his reports of combat service in Vietnam. VA attempted to verify the Veteran's reported stressor though a number of resources, including the Joint Services Research and Records Center (JSRRC), Naval Criminal Investigation Service (NCIS), the Camp Lejeune newspaper, the Marine Corps Records Service Section (MCRSS), the Marine Corps Archives and Special Collections (MCASC) and the Department of the Navy, Office of the Judge Advocate General (JAG). No source has been able to verify the occurrence of the claimed stressor, although it has been verified that a soldier matching the name of K.F.H. was stationed at Camp Lejeune in 1976. A review of K.F.H.'s service records did not disclose any mention of the alleged hostage incident. Following service, VA medical records document a diagnosis of a panic attack in July 1993. The records associated with this diagnosis reflect that the Veteran reported chest pain and symptoms after his house was entered by the police pursuant to an erroneous search warrant. Asthma was assessed at this time, but no psychiatric disability was assessed. A June 1997 VA record documents assessment of status-post panic attack, stress. At this time, the Veteran reported that his job was his major stressor. No psychiatric disability was assessed at this time. VA medical records are largely silent with respect to psychiatric complaints following the panic attacks in the 1990s. VA records reflect that in July 2002, the Veteran was admitted to the VAMC with reports of left-sided numbness of the upper and lower extremities, as well as left-sided non-radiating substernal chest pain, characterized as a continual dull ache. During this admission, he received a psychiatric evaluation, which resulted in assessment of "marked stress and anxiety from work" and alcohol (ETOH) abuse. At this time, the Veteran reported that his work was causing him extreme anxiety, and that he had received threats on his life at his workplace. Following examination, clinical records reflect that it did not appear that the Veteran had had a stroke, and a type of conversion disorder due to stress was suspected. He was discharged with an assessment of transient ischemic attack (TIA), i.e. stroke, versus stress-related conversion disorder. In a February 2004 statement the Veteran referred to neurosis, as if it were a service-connected disability. He also pointed to the July 2002 admission for treatment of TIA versus stress conversion disorder as evidence of service-connected disability. Of record is an April 2004 VA Initial Mental Health Evaluation record. At this time, the Veteran reported problems with depression, as well as problems on the job, particularly difficulties with management. Examination resulted in assessment of depressive disorder, not otherwise specified (NOS). A November 2007 VA initial psychology mental health evaluation psychiatric record documents an assessment of depression. At this time, the Veteran reported that he was in combat and that he experienced stress and trauma in that capacity. PTSD and depressive disorder, NOS were assessed. In December 2007, the Veteran underwent a comprehensive mental health service assessment. At that time, the Veteran reported that he was under significant amounts of stress at work. He also reported that a few days prior he had been robbed at gunpoint and had his car stolen. He reported increased job stress, insomnia and anger. He stated to the clinician that he saw people die in a plane crash in service, and that he was held hostage in Vietnam by his own unit. He again reported combat service. PTSD, chronic, anxiety disorder, NOS, and depressive disorder, NOS, were assessed. Similarly, a February 2008 VA treatment record reflects assessment of chronic adjustment disorder with mixed anxiety and mood symptoms. At this time the Veteran reported job-related stress that was ongoing for years. He reported conflict with his supervisor. He described that his job problems had strained his marriage, and that there had been brief periods of separation. He reported nightmares, including with content of Vietnam. The Board notes that in a June 2009 statement, the Veteran offered a different name for the assailant in the 1976 hostage incident, "J.J.S." However, in other statements, the name offered was J. Johnson. The Veteran has clarified, and testified in February 2012 that J. Johnson was the claimed individual that created the alleged hostage situation. In furtherance of substantiating his claim, the Veteran submitted a June 2009 letter from the Chief of Psychiatry at the Washington, DC VA Medical Center (VAMC). In the letter, the chief relates that the Veteran had been treated for non-combat, yet service-related, PTSD since December 2007. He stated that the Veteran was service-connected for "neurosis," and that it was his "strong belief" that the "1977 diagnosis of neurosis was directly related to the signs and symptoms of PTSD and depression." He explained that in 1977 PTSD was not yet coined as a diagnosis, and that therefore "neurosis" and PTSD were one in the same. In April 2011, the VA Chief of Psychiatry submitted another letter on the Veteran's behalf. The letter addressed the severity of the assessed PTSD, with depression and psychosis. It outlines that the Veteran had significant work-related stress, and thought that his supervisors were out to get him. The chief also noted that the Veteran had been recently mugged at gunpoint, which had exacerbated his symptoms. He found the Veteran to be unemployable. Of record is a September 2011 letter from the Veteran's mother. In the letter, she recalls that the Veteran's behavior changed when he returned from serving in the military. She outlined that he had problems with sleeping, insomnia and nightmares. She described that the Veteran often checked the house, and was angry, and suspicious. She stated that he was "still the same since returning from the military," although she felt that the military had changed him, as noted above. She felt it might be "shell shock," the violence he saw or some "experimental drug" that caused the Veteran to develop a psychiatric disability. In October and December 2011 letters the chief reiterated his findings regarding the severity of PTSD with depression and psychosis. The chief noted that the Veteran's symptoms were managed, but continued to find him unemployable. In April 2012, the chief once again submitted a letter on the Veteran's behalf. In this letter, the chief reiterated the Veteran's history of work-place stress, and continued to diagnose PTSD with depression and psychosis. He continued to find the Veteran unemployable. In February 2012, the Veteran testified before the Board. He outlined his assertions regarding the hostage event, noting that it was a "big deal" and that helicopters were called in during the situation. He felt that there had to be a record of the event somewhere. He stated that he remembered being "shook up" over the event. He recalled having been assessed with "neurosis" and that he received psychiatric treatment. He contended that he and the VA Chief of Psychiatry had checked the VA computer system, which, according to the Veteran, showed that he was service-connected for "neurosis." The Veteran felt that due to the chief's opinion, service connection for a psychiatric disability, was warranted. In April 2012, the Chief of Psychiatry submitted yet another letter on the Veteran's behalf. In the letter, the chief again referred to the Veteran's assertions regarding the hostage event. He felt it unlikely, however, that the event would have been reported in newspapers. The chief explained that he remembered that the CPRS (Computerized Patient Record System) showed that the Veteran had been granted service connection for neurosis, and could not understand why "service connection for neurosis" was removed from CPRS. In another April 2012 opinion the chief continued to find that the Veteran was unemployable due to PTSD and depression with psychosis. He noted that the Veteran's symptoms had recently been exacerbated by a mugging. In August 2012 the Veteran was afforded a VA examination. At this time, the Veteran reiterated his assertions regarding the alleged hostage incident at the barracks in service. He did not, however, report any history of workplace stress. Only PTSD was assessed and linked to the Veteran's alleged stressor. In April 2014, the Board remanded the matter, noting that although VA had requested records from the NCIS, it had not requested any records from the JAG. Following that remand, VA made an information request to the JAG. In August 2014, the JAG responded that "[a] diligent search of the files and databases yielded no results." VAMC records dated from 2014 through 2016 reflect continued assessment of PTSD, as well as depressive disorder, NOS, anxiety disorder NOS, psychotic disorder, NOS, and ETOH dependence in remission. They document financial stressors, and that the Veteran continued to report nightmares, including about combat and the alleged hostage incident. See e.g. April 2015, June 2015, September 2015, December 2015, June 2016 and September 2016 VA mental health notes. Following the Board's February 2017 remand, the Veteran was afforded a VA examination in April 2017. Examination at that time resulted in assessments of PTSD, major depressive disorder (MDD) with "mood congruent psychotic features," unspecified anxiety disorder, insomnia with non-sleep disorder mental comorbidity, and a history of nicotine and alcohol dependence. The examiner noted that sleep apnea may contribute to mood disturbance and fatigue, and that type II diabetes mellitus may contribute to symptoms of depression. In terms of service etiology, the examiner concluded that it was less likely than not that any psychiatric disability other than PTSD was incurred in, or related to, service. The examiner concluded as such, noting that the Veteran's reported stressors were not substantiated. The Board notes that the April 2017 VA examiner's opinion is awkwardly worded in that the examiner checked the Disability Benefits Questionnaire (DBQ) box relating to secondary service connection. However, when the opinion is viewed in its entirety, and in the context of the full examination, it is clear that the examiner did not feel that the Veteran's had a psychiatric disability other than PTSD that was incurred in or attributable to service. See Dyment v. West, 13 Vet. App. 141 (1999); Evans v. West, 12 Vet. App. 22 (1998). Initially, the Board will address the allegations of combat stressors. Here, the Veteran did not serve in combat. Although he served briefly during the end of the Vietnam Era, a review of his personnel records shows that he never served in Vietnam. He was not awarded any decorations, such as the Combat Infantry Badge (CIB), to indicate participation in combat. Thus, to the extent that any combat stressors are alleged, the Board finds these allegations lacking in credibility. Thus, they are of no probative value. It is the duty of the Board as the fact finder to determine the credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Likewise, the Board must also address the credibility and weight to be afforded the Veteran's reports of the hostage incident. Along these lines, the Board must find that the Veteran lacks credibility in his contentions. As noted above, the Veteran did not serve in combat, and his assertions to the contrary lead the Board to question his overall credibility. His allegations of a hostage situation are of such magnitude, that it is fairly unimaginable to the Board that there would be no record of the event, anywhere. Despite numerous requests of possible custodians, VA has been unable to corroborate the Veteran's allegations. The Board also notes that the Veteran initially claimed that "J.J.S." was the assailant during the alleged incident, but later recalled that it was "J. Johnson." Due to privacy concerns the Board will not specify the last name of "J.J.S.," but notes that his last name is significantly different than "Johnson." It is also notable to the Board that until December 2007, the Veteran had reported work-place stress as the primary, if not sole, source of his stress, and that was hospitalized in 2002 for a related conversion disorder. The Board concludes that the Veteran is lacking in credibility, and affords his assertions no probative value. Id. The Board also notes the statement of D.E.A. The Board notes that on its face this letter appears to corroborate the Veteran's reports of the hostage incident. However, and despite the fact that D.E.A. may have served with the Veteran, the Board finds this statement lacking in credibility as well. As noted above, the incident described is a fairly "big deal," as the Veteran has related. It would seem certain to the Board that this incident would be documented. Thus, D.E.A.'s statement is of no probative value. Id. The Veteran's mother has also offered a personal statement to the effect that the Veteran had changed following his period of service, and that his service had resulted in a psychiatric disorder. Although the Veteran's mother is capable of describing her impressions of the Veteran's behavior, she is not qualified to render a diagnosis of a psychiatric disability. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, to the extent she is relating observations of behavioral changes, her statements are relevant. However, her statements can do little other than offer her impressions of the Veteran, and while probative, cannot on their own serve to substantiate the claim. They certainly lend no credence to the Veteran's assertions regarding the hostage incident and combat service. Perhaps most significantly, the Board must address the various opinions of the VA Chief of Psychiatry. In this regard, the Board notes that he has attributed neurosis, depression and psychosis to service, and particularly to the alleged hostage incident. Also, the chief has indicated his astonishment that the Veteran is not service-connected for "neurosis." He has suggested that VA has somehow removed "neurosis" as a service-connected disability. First, the Board will address the chief's belief that neurosis is a service-connected disability. The Board has reviewed the record, including numerous adjudications dating from 1977 to present, and has found no indication that a claim of entitlement to service connection for neurosis was ever filed or adjudicated. The chief's recollection is incorrect in this regard, and the Board finds no evidence that any record was removed from the claims file. Second, the Board will consider the chief's favorable opinions. In each case, he has relied upon the uncorroborated and apparently fabricated history of the hostage incident offered by the Veteran. As outlined herein above, the Board has found the lay evidence of the occurrence of this incident, including the Veteran's statements, lacking in credibility. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the chief's opinions are based upon an unsubstantiated history, and are of no probative value. In terms of chronicity, the Board notes that there is no evidence of any psychiatric disability in service, including any psychosis. Walker, supra. Here, the earliest evidence of any psychiatric disability appears in VA records dated in July 1993 and June 1997, which note assessment of panic attacks. In July 2002, the Veteran was assessed as having a conversion disorder, related to "marked stress and anxiety from work." Service connection is likewise not warranted on a presumptive basis for a psychosis, apart from PTSD. 38 C.F.R. §§ 3.307, 3.309(a). Although a psychosis was assessed in April 2011, there is no evidence of any psychosis in the first post-service year. See 38 C.F.R. §§ 3.309(a), 3.384. As such, service connection based on the presumption in favor of chronic diseases cannot be granted for a psychosis. In every instance, the purported favorable medical evidence of record is based upon an inaccurate history provided by the Veteran. As noted above, the Veteran did not participate in combat, despite his reports of such service. Most saliently, the reports of the hostage situation have not been corroborated, and the Board has found the Veteran and the reports thereof lacking in credibility. The earliest clinical evidence relating to a psychiatric disability appears in 1993, or approximately 16 years following discharge, and it is indicated that the Veteran's psychiatric complaints are related to post-service stress. Moreover, during recent VA examination a VA examiner concluded that it was less likely than not that a psychiatric disability (in addition to the previously denied PTSD) was incurred in, or related to, service. Thus, despite any apparently favorable medical opinion, the claim for service connection of a psychiatric disability (in addition to the previously denied PTSD) must be denied. Gilbert, supra. In summary, the Board finds that the preponderance of the evidence is against finding that the Veteran has a psychiatric disability (in addition to the previously denied PTSD) that was incurred in, or related to, service, and therefore service-connection is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disability to include "neurosis," psychotic disorder, depressive disorder, major depressive disorder (including with psychosis), anxiety disorder, panic disorder, conversion disorder, insomnia, adjustment disorder, alcohol dependence, and nicotine dependence, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs