Citation Nr: 1802470 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-09 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to February 1993. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing in January 2015. A transcript of that hearing is associated with the claims file. This case was most recently before the Board in May 2017 when it was remanded for additional development. It has returned for adjudication. FINDING OF FACT The weight of the evidence is against a finding that the Veteran had or has PTSD at any time during the appeal period or that her bipolar depression was incurred in, or caused or aggravated by, her active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter was remanded in May 2017 for additional development. Specifically, the Board directed the RO to verify the Veteran's mailing address and schedule an examination to determine the nature and etiology of her claimed acquired psychiatric disorder(s). The examination was provided in June 2017 and the accompanying examination report is associated with the claims file. Accordingly, the Board finds that there has been substantial compliance with the May 2017 remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). Neither the Veteran nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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 a duty to assist argument). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). The criteria for service connection for PTSD are slightly different for the criteria for other disabilities. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304. The Veteran claims that she has PTSD and/or bipolar disorder as a result of her feelings of stress and anxiety while serving in a combat zone. She also states that she witnessed dead Iraqi soldiers and the aftermath of a scud attack while serving in southwest Asia during Desert Shield/Desert Storm. Her Certificate of Release or Discharge, Form DD-214, shows foreign service and her personnel records showing that she was stationed in Saudi Arabia in 1990. She received imminent danger pay during that deployment. A VA examination was conducted in December 2010. The examiner noted treatment in September 2008 during which the Veteran reported being non-combat. She was seen for anger on the job and made a suicidal gesture in 1996 or 1997 during problems with her husband. She reported she was having sleep problems and hearing angelic music when she went to sleep. At that time, in 2008, she was diagnosed with rule out depression, not otherwise specified. Reference was made to a mental health history in her treatment records stating that the Veteran said that she had general stress in the combat zone and that she had seen pictures of dead Iraqis. She reported symptoms of depression, mania, and PTSD and was given a diagnosis of PTSD and bipolar disorder with psychosis. The examiner noted a PTSD assessment in the Veteran's VA medical records, but that she did not meet the full criteria for the diagnosis and so it was reversed and she was given only the diagnosis of bipolar I disorder most recent episode depressed, severe. The VA examiner noted that the Veteran did not currently describe significant PTSD symptoms and in fact, the diagnosis was already rule out before. He explained that she did not mention any avoidance symptoms aside from symptoms that would be expected when she is actively depressed. She reported irritability and anger, but that is also expected in bipolar disorder along with the sleep disturbance. The Veteran reported various in-service stressors but the examiner indicated that she did not describe criterion A for PTSD regarding any of the incidents. Specifically, she was not present for any of the traumatic events she reported. The Veteran was administered the Minnesota Multiphasic Personality Inventory-2. The results of the test were invalid and reflective of clear exaggeration and over reporting of psychiatric symptoms. The examiner noted that the results bring her credibility into question. The Veteran's VA treatment records show ongoing mental health treatment. In February 2009, a mental health treatment record indicates an assessment of rule out PTSD, depression not otherwise specified (NOS), and psychosis NOS. In March 2009, she attended a VA mental health initial evaluation to see if she qualified for treatment. The clinical psychologist indicated that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis. In a March 2009 statement, the Veteran reported that she was stressed and suicidal due to combat. She noted that she was angry, anxious, and antisocial with family and friends. She was stressed out viewing pictures of dead bodies and having friends die. A May 2009 primary care note lists PTSD with the Veteran's diagnoses. In August 2009, during a psychology outpatient assessment, she was diagnosed with "R/O Depressive Disorder, [not otherwise specified]". During the January 2015 Board hearing, the Veteran reported that she first sought treatment for an acquired psychiatric disorder around 2004 at her employer's recommendation. She began seeing a psychiatrist and taking medication. She indicated she was later diagnosed with bipolar PTSD. She attributed her psychiatric symptomatology to the loud noises she experienced in service from trucks and planes, hearing bombings, and witnessing the areas that had been destroyed. She stated that she thought she was going to die "every day." The Veteran reported nightmares about her service and difficulty sleeping. In June 2017, the Veteran presented to an occupational therapy consult with a treating diagnosis of Bipolar II Disorder. During a July 2017 VA examination, the examiner reviewed the Veteran's claims file, including her pertinent medical history. Based on this review and an evaluation of the Veteran, the examiner indicated that the Veteran does not have a diagnosis of PTSD that conforms to the DSM criteria but the Veteran did have bipolar disorder and was, at that time, in a mixed manic/depressive episode. The examiner noted that the Veteran has been evaluated several times beginning in 2008, and that she received psychiatric treatment and has been prescribed medication to treat her psychological difficulties. Reference was made to varying psychiatric diagnoses. In September 2008, she was diagnosed as having Depressive Disorder, in January 2009, she was diagnosed as having PTSD and Bipolar Disorder, and in April 2009, December 2010, April 2011, and September 2014, she was diagnosed as having Bipolar Disorder. The Veteran reported the onset of depression in the military. She stated that she sought treatment in 2009 after being referred by an employer. She was diagnosed as having bipolar disorder at that time and was prescribed medication. She noted continuous treatment with a VA psychiatrist who prescribes medication. The Veteran reported that she no longer had auditory hallucinations and that her depression had improved. The examiner found that the Veteran's reports of hearing mortar attacks were not sufficient to support the diagnosis of PTSD. The Veteran also did not demonstrate marked alterations in arousal and reactivity associated with the traumatic event, beginning or worsening after the traumatic event. Accordingly, the examiner indicated that the Veteran does not meet the criteria for PTSD. The examiner indicated that the Veteran does feel very sad when thinking about combat, not spending time with her son, and what other people in combat are going through. She appears to over-identify with them. Her awareness of what goes on during combat may have contributed to some degree to her depressive symptoms along with many other factors that have impacted her life and psychological functioning. The examiner further opined that the Veteran's bipolar disorder was less likely than not incurred in or caused by the Veteran's active service. The rationale was that the Veteran's awareness of how combat affects people's lives may contribute to her depressive symptoms along with other factors that have affected her life, but that the bipolar disorder is not a result of combat. The weight of the evidence is against a finding that the Veteran has or had PTSD at any time during the appeal period. The Board acknowledges the "diagnosis" of PTSD in the record and that the requirement of a current disability is satisfied when the Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that the claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, the facts of the present case are distinguished from those of McClain. The evidence does not reflect that the Veteran had PTSD that resolved during the pendency of the claim. Rather, the Board finds that the most probative evidence (i.e. the VA examination findings, particularly in regard to the lack of sufficient stressor severity) indicates that the Veteran did not PTSD at any point during the appeal period or prior to his filling a claim for service connection. Cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Both VA examinations have concluded that the Veteran does not have and has not had PTSD and each have provided explanation. Both examiners explained the missing diagnostic criteria required for a PTSD diagnosis. The treatment notes that included a PTSD diagnosis provided no explanation for the finding. Indeed, even the Veteran's treating mental health providers, who initially listed PTSD as a diagnosis, ultimately concluded the more appropriate diagnosis was bipolar disorder. Without a diagnosis, service connection for PTSD cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). With respect to the Veteran's bipolar disorder, the evidence is against a finding that the psychiatric disorder is related to the Veteran's active service. The Veteran's service treatment records are absent of complaint or treatment for a psychiatric disorder or complaints. There is also no evidence of a diagnosis of psychosis until many years following service. Although the Veteran reported ongoing depression since service, the earliest indication of treatment in her medical records is from 1996, 3 years after discharge. During the January 2015 hearing, the Veteran stated that she first sought psychiatric treatment at the recommendation of her employer in 2004, over a decade after service discharge. This weighs against service connection and any claim of continuity of symptomatology of a psychosis. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (allowing the Board to consider "evidence of a prolonged period without medical complaint"). Further, even considering the Veteran's reported in-service stressors, the July 2017 VA examiner found that bipolar disorder less likely than not had its onset in or was caused by her combat service. Although the examiner noted that some of the Veteran's depression may be linked to her awareness of what goes on during combat, there is no indication that her symptoms are related to her actual service. Her depression appears related to feelings of sadness for those serving in combat presently, which by no means relates the bipolar disorder to the Veteran's active service or any even occurring therein. The Veteran has indicated that she believes that her mental disorder relates to her experiences in service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the question of whether the Veteran's bipolar disorder is related to her military experiences falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Psychiatric disabilities are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the evidence is against a finding of nexus and service connection. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for an acquired psychiatric disorder must therefore be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs