Citation Nr: 1757780 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-19 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1974 to September 1978, and also had additional Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). In May 2014 and February 2017, the case was remanded for additional development (by Veterans Law Judges other than the undersigned); the case is now assigned to the undersigned. FINDING OF FACT An acquired psychiatric disability was not manifested in service; a psychosis was not manifested within one year after the Veteran's separation from service; and any currently diagnosed psychiatric disability is not shown to be etiologically related to the Veteran's service. CONCLUSION OF LAW Service connection for a psychiatric disability, to include PTSD, is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in January 2010. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. In February 2017, the Board remanded this claim for additional development, including for a medical examination to assess his psychiatric disabilities; the Veteran failed (without good cause) to report. As he has failed without presenting good cause to report for an examination scheduled in conjunction with an original compensation claim, adjudication of this matter must proceed based on the evidence in the record. See 38 C.F.R. § 3.655(b). The duty to assist a claimant is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992); see also Wood v. Derwinski, 1 Vet. App. 406 (1991). The Board finds that there has been substantial compliance with the Board's February 2017 remand instructions (i.e., to the extent possible without the Veteran's cooperation). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). Notably, the Veteran and his representative have not raised any issues regarding VA's duties to notify and assist a claimant. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include psychoses) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for psychoses). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnoses pertaining to a psychiatric disability. On September 1978 service separation examination, psychiatric evaluation was normal; he denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. Notably, the Veteran's DD-214 reflects that he was awarded a Good Conduct medal for the period ending in September 1978. A July 1979 VA general medical examination (which included psychiatric evaluation) found only left ear hearing loss; a psychiatric disability was not noted or reported. Reports of periodic examinations for Reserve service purposes in June 1981, July 1982, June 1984, April 1987, July 1987, June 1990, April 1995, and April 2000 each note normal psychiatric evaluation; in corresponding reports of medical history, the Veteran denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. [The corresponding boxes were left blank in a June 1990 report of medical history.] A February 1990 private medical record notes complaints of an episode of heart palpitations when feeling "extremely anxious over standing in front of a large crowd" prior to a receiving a commendation. Examination showed a regular heart and clear lungs; the physician opined that his "palpitations were likely secondary to anxiety because of the ceremony that he was to attend." A September 2009 VA preventive medicine record notes that PTSD and depression screens were negative. In a November 2009 statement, the Veteran reported that Lexapro was prescribed to control his angry moods and violent outbursts. He stated, "My family has suffered enough with my behavior throughout the years." A January 2010 medical statement from the Veteran's private treating physician notes that he "is currently taking Lexapro for an anxiety condition. It is planned to be on a long term basis." A January 2010 VA primary care record also notes an assessment of anxiety. In a January 2010 statement, the Veteran reported that he witnessed two traumatic events in service. First, he reported that he observed a shipmate commit suicide via opium overdose in a port in India. Second, he reported that he observed a shipmate fall overboard into Singapore Bay; the man was rescued "and the next day he was transferred off the ship." In a February 2010 statement, the Veteran again reported witnessing two traumatic incidents in service. He stated that he saw the man who committed suicide shaking in his bunk two racks away. Regarding the man overboard, he stated, "Our ship came about and picked him up from the sea." In September 2010, VA made a formal finding of a lack of information required to corroborate stressors associated with the Veteran's claim of service connection for PTSD. Review of his records did not show any combat medals for which a stressor could be conceded. Review of deck logs did not show a suicide or death as reported by the Veteran. Notably, in July and August 1976 (when he reported witnessing the suicide), his ship was moored in San Diego or underway to Seal Beach, California or Pearl Harbor, Hawaii (and not in India). Regarding his reported stressor of witnessing a sailor fall into the Bay of Singapore, the ship's command history shows that it was moored in San Diego or conducting Southern California operations (and not in Singapore) from March 28 to December 31, 1977 (when he reported witnessing a shipmate overboard). An October 14, 2010 primary care record notes complaints of increasing flashbacks and cold sweats. He described several traumatic incidents in service, including: a fall down a void on the ship which injured his shoulder; witnessing a soldier "shaking in his rack" after overdosing on opium to kill himself in the bunk next to him; witnessing a solder fall overboard into shark-infested waters and being killed in the Sea of Singapore; and, soldiers slitting their wrists. The psychologist's impression was "Anxiety state." An October 18, 2010 mental health record notes complaints of anxiety and flashbacks. The Veteran reported flashbacks occurring one to three times a week and consisting of "seeing the gentleman that killed himself, I can still see his body shaking up and down, he was 18 or 19 years old, I was 20 then." He also reported seeing a seaman go overboard and be "released from service that day." The impression was general anxiety disorder, rule out PTSD. A February 2013 VA primary care record notes complaints of sadness following the death of his mother. The diagnoses were anxiety and depression. A March 2013 VA behavioral health record notes the Veteran's report of flashbacks to an incident when he witnessed a 19-year old a few racks away from him commit suicide by opium overdose; he reported that he still remembers the shaking of the man. He also reported that he witnessed a man fall overboard into shark-infested water and be killed. Finally, he reported witnessing men onboard slit their wrists. He reported he drank a 6-pack of beer weekdays and a 12-pack on weekend days. The assessment was alcohol abuse, rule out depression not otherwise specified, rule out PTSD. In May 2014, the Board remanded this matter for additional development, including to ascertain whether a psychiatric disability other than PTSD may be etiologically related to the Veteran's active duty service. On October 29, 2014 VA PTSD examination, the Veteran reported occasional mood disturbances, occasional anheondic symptoms, anxiety, sleep disturbances, panic attacks, interpersonal difficulties, and concentration disturbances; he denied appetite disturbance. He reported drinking five to six beers per night, but was not willing to discuss alcohol use further. [The examiner noted the March 2013 record regarding alcohol use.] The Veteran reported two stressor events in service: He reported that he awoke one morning and saw a shipmate quivering on a top bunk, but was unable to wake him; the shipmate had overdosed on pure opium. He also reported witnessing a shipmate fall overboard in the Bay of Singapore and be rescued from shark-infested waters. Following interview of the Veteran and review of his VA treatment records, the diagnoses were depression NOS (not otherwise specified), anxiety disorder, and alcohol-related disorder. The examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD; persistent avoidance of stimuli associated with the traumatic event(s) and negative alterations in cognition and mood associated with the traumatic event(s) were not shown. In conclusion, the examiner observed that the Veteran's reported stressors on examination were "different than that reported to other psychologists. Specifically, he reports to others that the shipman who reportedly overdosed was committing suicide (he did not include this here nor did it seem a reasonable presumption in the way he told the story) and has reported that he observed a shipmate go overboard and be killed by sharks. Today, he clearly states that this shipmate was rescued." In an October 31, 2014 addendum, following review of the Veteran's service treatment records and service personnel records, the examiner opined that his psychiatric disabilities are less likely than not incurred in or caused by an injury, event, or illness in service. The examiner explained that the Veteran was guarded and reticent to answer forthrightly, and opined that (although not diagnosed) the Veteran "suffers from characterological (i.e., personality) factors that mediate his view of self, others and the world and thus contributes to his reported experience of mood disturbance." The examiner also noted that the Veteran's military service records consistently showed "exemplary" status and concomitant responses (e.g. promotions). "There is no evidence in the military record of a change in this reported exemplary service and, thus, no evidence of occupational impairment during his military service that might be attributable to the claimed disorder." A September 2015 clinical record notes that screens for depression and PTSD were both negative. In February 2017, the Board again remanded this matter for additional development, to include obtaining an addendum opinion regarding the criteria absent for a diagnosis of PTSD, as well as for an adequate medical advisory opinion which considered the Veteran's lay reports of anger since separation and the February 1990 treatment record which noted complaints of heart palpitations and anxiety prior to receiving a commendation. In an April 2017 VA addendum, the October 2014 examiner explained that the Veteran's symptomatology on October 2014 examination failed to meet the diagnostic criteria for PTSD as he did not endorse any avoidant/numbing symptoms that would be connected to the reported trauma. He was unable to answer the additional questions posed in the February 2017 remand without speculation. A further examination was scheduled in July 2017. The Veteran did not appear for the examination (and did not provide cause). Analysis The Veteran claims that he has a psychiatric disability related to his service. It is not in dispute that he currently has various psychiatric diagnoses, including depression, anxiety disorder, and unspecified alcohol-related disorder; a clinical diagnosis of PTSD has not been found. The analysis proceeds to whether the diagnosed psychiatric disabilities are shown to be etiologically related to the Veteran's period of active service. His STRs are silent for complaints or findings related to a psychiatric disability. On service separation examination, psychiatric evaluation was normal. On July 1979 (10 months following separation from service) VA general medical examination, a psychiatric disability was not noted or reported, and on periodic Reserve examinations from June 1981 through April 2000 psychiatric evaluations were all normal. On each periodic examination, with the exception of June 1990 when the self-report of medical history was not completed, the Veteran denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. Accordingly, service connection for a psychiatric disability on the basis that such became manifest in service, or on a presumptive basis (for a psychosis as a chronic disease under 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309) is not warranted. What remains for consideration is whether any currently diagnosed psychiatric disability is otherwise shown to be etiologically related to the Veteran's service. The Veteran's STRs are silent for complaints or findings related to a psychiatric disability; as noted above, and he has provided inconsistent statements regarding stressor events in service (to the extent corroboration could be sought based on the sparse identifying information he provided, the information received tended to disprove, rather than support, his accounts. A February 1990 (some 12 years following service) clinical record notes the Veteran's complaints of heart palpitations likely related to anxiety prior to receiving a commendation before a large crowd is the earliest suggestion in the record of possible psychiatric symptoms. The earliest clinical record pertaining to psychiatric treatment is from 2010, more than three decades following the Veteran's separation from service. While lay evidence of symptoms occurring during and after service may be competent evidence, regardless of the lack of contemporaneous medical evidence (see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)), the Veteran's accounts of continuous symptoms ever since service (or "over the years" as reported in November 2009) are inconsistent with contemporaneous clinical findings to include normal psychiatric evaluations on eight separate periodic Reserve examinations through 2000. His reports of stressor events in service have been inconsistent (and as noted above, in large part proven false by official records). Both are deemed not credible. Furthermore, there is no competent (medical opinion) evidence of record that relates the Veteran's psychiatric disabilities to his service. In the absence of credible evidence of onset in service and continuity thereafter, whether a psychiatric disability first diagnosed more than 30 years postservice may be etiologically related to service is a medical question. The Veteran is a layperson, and has not submitted any medical opinion or medical treatise supporting his claim; his own opinion in the matter is not competent or probative evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only competent (medical) evidence in the record regarding the etiology of the Veteran's psychiatric disability is in the October 2014 VA examiner's opinion that the disability is less likely than not related to the Veteran's military service, and the Veteran's reported (but uncorroborated) stressor events therein. The Board notes that that opinion did not consider the Veteran's lay report of anger and violent outbursts "over the years" or the February 1990 treatment for heart palpitations, and that the matter was remanded for an examination to secure an opinion that encompasses such information. However, the Veteran failed (without good cause) to report for the scheduled examination, and therefore the further development sought could not be completed. The Board observes that the Veteran's reports of continuity of symptoms have been found to not be credible. In summary, an acquired psychiatric disability is not shown to have been manifested in service or in the first postservice year. The Veteran's reports of continuity of psychiatric symptomatology since service are inconsistent with contemporaneously recorded clinical data, and are deemed not credible. The only competent (albeit less than optimal, due to the Veteran's failure to co-operate) evidence in the record regarding the etiology of his psychiatric disability is against his claim. Therefore, the preponderance of the evidence is against the claim. The benefit of the doubt rule does not apply; the appeal in the matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER Service connection for a psychiatric disability, to include PTSD, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs