Citation Nr: 1800333 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-06 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression not otherwise specified (NOS), adjustment disorder with mixed emotional features, and dysthymic disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from October 1965 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran's claim for service connection for an acquired psychiatric disability, to include PTSD, depression NOS, adjustment disorder with mixed emotional features, and dysthymic disorder, is construed broadly, as stated on the cover page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In its May 2011 rating decision, the RO found that the May 2009 and April 2010 rating decisions had become final, and thereby applied the evidentiary standard of new and material evidence. The Board finds, however, that the claim has been continuously adjudicated since the initial May 2009 denial; therefore, the claim remains on appeal and is properly before the Board. Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing conducted in Des Moines, Iowa, in May 2015. The transcript of that hearing has been associated with the claims file. This case was previously before the Board in December 2015, at which time the issue on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT An acquired psychiatric disability, to include PTSD, depression not otherwise specified, adjustment disorder with mixed emotional features, and dysthymic disorder, is not etiologically related to the Veteran's active service, and a psychosis was not shown to be present to be present within one year of his separation from active service. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, depression not otherwise specified, adjustment disorder with mixed emotional features, and dysthymic disorder, was not incurred in or aggravated by active service, and the incurrence or aggravation of a psychosis during active service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for PTSD and depression was denied in May 2009, in April 2010, in May 2011, and in September 2012. Because the Veteran submitted additional new evidence following each rating decision before the rating decision became final, the Veteran's claim for service connection for an acquired psychiatric disability, to include depression, adjustment disorder, dysthymic disorder, and PTSD, has remained continuously in the process of adjudication since the May 2009 rating decision. Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011). The Veteran contends that he has an acquired psychiatric disorder as a result of his active service. Specifically, the Veteran contends that he has PTSD, depression, and anxiety due to stressors related to fear of hostile military or terrorist activity during active service in the Republic of Vietnam. STRs are silent for any complaint, treatment, or clinical diagnosis of an acquired psychiatric disorder prior to separation from active service. Review of the post-service treatment notes of record shows the Veteran first reported mental health issues related to interpersonal difficulties at work, irritability, sleep impairment, anxiety, and mood swings when he switched his primary health care from private providers to the VA healthcare system. In October 2007, the Veteran had an initial general health evaluation at his local VA care center, the Fort Dodge community-based outpatient clinic (CBOC). The Veteran reported increased irritability, mood swings, and increased anxiety in the recent months, with a complicating factor of concern over his finances. He reported that he had been treated for anxiety in the past and endorsed recent outbreaks of anger at work. A PTSD screen test was administered and the result was positive. Consequently, the Veteran was referred to the Des Moines VA Medical Center (VAMC) for an initial PTSD evaluation. At his November 2007 VA Mental Health consultation at the Des Moines VAMC, the Veteran reported low frustration tolerance with a tendency for being easily angered. He reported intermittently occurring nightmares about his period of active service in the Republic of Vietnam, symptoms of hypervigilance, periodic exaggerated startle response, and occasional flashbacks when in the presence of Asian people. The Veteran stated he felt depressed, anxious, and irritable. His initial Diagnostic and Statistical Manual of mental health disorders, 4th edition (DSM-IV) diagnosis included clinical diagnoses of depression NOS, and PTSD traits, and a global assessment of functioning (GAF) score of 45, indicating serious impairment in social and/or occupational functioning. The Veteran was then placed on a medication treatment plan to address his psychiatric symptoms with noted improvement in symptoms over time. The Veteran later submitted for the record a March 2008 private psychological evaluation which found that he met the DSM-IV Criterion A for PTSD based upon his witness of enemy mortar assault near his base and fear that he was going to die the night of the attack. The private examiner stated that, under Criterion B, the Veteran reported frequent violent nightmares of combat in Vietnam and distressing intrusive thoughts several times a week but especially after loud, unexpected noises. Under Criterion C, the examiner stated the Veteran reported avoidance activities to include not talking about his Vietnam experiences with his wife and trying not to think about Vietnam despite not knowing how to go about it. In sum, the examiner diagnosed delayed-onset chronic PTSD and recurrent, mild-to-moderate major depressive disorder, but assigned a GAF score of 60, indicating mild-to-moderate impairment in social and/or occupational functioning. In September 2008, the Veteran was initially diagnosed with PTSD. However, during a November 2008 VA smoking cessation telephone consultation, the Veteran stated that he felt he did not have PTSD, and added that even if he did, he was being treated for it and felt fine. Such evidence does not support the Veteran's claim. Between 2008 and 2010, the Veteran was treated for PTSD symptoms and depression, with positive results yet his depression and irritability persisted to some degree. At a September 2010 VA examination, the Veteran reported PTSD stressors during his overseas service in the Republic of Vietnam. He stated that he felt threatened by the rules of engagement and their impact on his ability to react to potential enemy hostiles during his time as an aircraft mechanic at Chu Lai and Da Nang. At Chu Lai, he reported the base came under mortar attack once or twice per week, and stated he and fellow soldiers were denied permission to return fire out of concern for civilians. Similarly, at Da Nang, he was instructed that, if fired upon, his unit was not to return fire until enemy combatants were fairly close. The Veteran described feeling like a sitting duck in those circumstances, and the examiner stated that the Veteran's description of and emotional reaction to those experiences was sufficient to regard them as traumatic stressors capable of engendering PTSD. However, the examiner noted that although the Veteran described re-experiencing symptoms and a number of arousal symptoms suggestive of PTSD, he did not report sufficient avoidant symptoms to meet Criterion C of the PTSD diagnostic criteria. The examiner further noted no specific identification of additional avoidant symptoms were found in a review of the Veteran's medical records. On that basis, the examiner opined, despite accounts of Vietnam-related stressors which appeared to be sufficient to meet diagnostic criteria as traumatic events, a diagnosis of PTSD was not warranted. The examiner further opined that the Veteran's significant depressive symptoms and moderate anxiety were more likely due to work-related stressors, particularly the recent announcement of an impending plant closure and inevitability of being laid off from work. The examiner opined that the Veteran's current depressive symptoms appear to have been reactive to this significantly distressing development, and found no clear connection between the Veteran's current depressive symptoms and his period of active service. Further, the examiner opined that with the current symptoms he reported, the Veteran did not indicate significant functional impairment. Therefore, the examiner changed the Veteran's psychiatric diagnosis to adjustment disorder with emotional features and raised his GAF score to 50, indicative of moderate impairment. At a September 2012 VA examination, the Veteran's psychiatric diagnosis was changed once more. The examiner diagnosed dysthymic disorder and stated that the Veteran's psychiatric symptoms did not meet diagnostic criteria for PTSD under DSM-IV criteria. Further, the examiner stated that depressive symptoms previously seen as reactive to loss of employment due to a plant closure had not resolved despite psychiatric care including antidepressant medication treatment and recently finding part-time employment. The examiner opined that chronicity suggested dysthymic disorder, although reduced employment and income might have been considered a chronic stressor resulting in a chronic adjustment disorder. Nevertheless, the examiner opined that there was no evidence relating that diagnosis to the Veteran's active service. The examiner confirmed the previous VA examination findings, stating that the Veteran continued to describe fairly minor service-related stressors which were, nonetheless, regarded as sufficient to meet diagnostic criteria as stressors capable of engendering PTSD symptoms. The focal issue remained that the Veteran's only reported avoidance symptom was reluctance to discuss his active service experiences. Indeed, the Veteran indicated that he had friends and felt close to family, including step-children and step-grandchildren, and did not describe a foreshortened future. The Veteran's occupational and social impairment was evaluated as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. At a May 2016 VA examination, the Veteran's psychiatric diagnosis was revised once more. On examination, the examiner diagnosed persistent depressive disorder and evaluated the Veteran's level of impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner stated that, as with the September 2010 and September 2012 VA examinations, the Veteran presented with a trauma stressor event capable of engendering PTSD but did not endorse symptoms to support a PTSD diagnosis for either DSM-IV or DSM-5. On interview, the Veteran did not endorse any re-experiencing symptoms such as recurrent, involuntary, intrusive, or distressing thoughts, and denied being able to recall the content of his dreams. Furthermore, the examiner found that the Veteran's restless movements during sleep that had previously been attributed to nightmares were currently accounted for by his recent diagnosis of restless leg syndrome. The examiner opined that the Veteran's currently present persistent depressive disorder was less likely than not incurred in or caused by the Veteran's reported active service stressors and his rationale was based on the fact that the Veteran was not diagnosed with depression until 2007, indicating no continuity of symptomatology. The Board finds the September 2010, September 2012, and May 2016 VA examination reports to be adequate, when read in conjunction with one another, as the medical officers thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran submitted a March 2008 private psychological evaluation that diagnosed delayed-onset, chronic PTSD and recurrent major depressive disorder, the Board finds the VA examination reports to be of higher probative value for the reasons discussed above. The Board further notes that the Veteran first complained of depression symptoms in October 2007, approximately 38 years after separation from active service; therefore there was no continuity of symptomatology on which to base a theory of entitlement to service connection. Further, as noted, while the Veteran is competent to report mental health symptoms such as depression and anxiety, he is not competent to link his current diagnosis of persistent depressive disorder to his active service. An opinion of that nature requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Also, there is no indication from the record that the Veteran has been diagnosed with a psychosis, let alone diagnosed with a psychosis within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. This is a complex case in that some of the evidence of record does support the Veteran's claim. However, following detailed examinations over many years, the Board finds that while some evidence does support the Veteran's case, the best evidence does not. The critical issue in this case is whether it is at least as likely as not that the current problem is related to his military service, and the stressors cited above. This is primarily a medical determination. While the Veteran has a current psychiatric diagnosis and has competently reported in-service stressors (his honorable service is not in dispute), they are not linked by evidence of record. The September 2010, September 2012, and May 2016 VA examiners, as whole, competently opined that the Veteran's acquired psychiatric disability was not related to his active service, and those opinions, when read in conjunction with one another, are the most probative evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression NOS, adjustment disorder with mixed emotional features, and dysthymic disorder, is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression NOS, adjustment disorder with mixed emotional features, and dysthymic disorder, is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs