Citation Nr: 1803478 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 062A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied service connection for PTSD. Subsequently, an April 2015 rating decision denied service connection for anxiety and depression. The Veteran initially filed a claim for service connection for PTSD, which was denied in the July 2011 rating decision on appeal. Subsequently, he asserted a claim for service connection for anxiety and depression; service connection was denied for these disorders in April 2015. A review of the record reveals diagnoses of varying psychiatric disorders. Claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal and has considered the claim with respect to all disorders indicated in the record. The case was previously before the Board in September 2015, when it was remanded for examination of the veteran and medical opinions. The requested development has been completed. FINDINGS OF FACT 1. The Veteran has diagnoses of various psychiatric disorders including PTSD, schizophrenia, delusional disorder, anxiety, and depression, which were not diagnosed until many years after service and are not etiologically related to service. 2. The probative evidence of record indicates that the Veteran does not meet the full criteria for a diagnosis of PTSD. CONCLUSION OF LAW A psychiatric disorder, to include PTSD, was not incurred in, or aggravated by, active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Psychoses may be presumed to have been incurred during active military service if it manifest to a degree of 10 percent within the first year following active service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. While the Veteran has diagnoses of psychoses of record, there is no evidence that a psychosis was present during service or became manifest within a year of his separation from service. Accordingly, service connection on a presumptive basis is not warranted. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If a stressor is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, 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 service, lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). The record demonstrates that the Veteran served on active duty in the Navy from February 1973 to September 1974. He was an Aviation Boatswain's Mate who was an airman apprentice (E-2) and served primarily at a Naval Air Station in the Philippines. He was separated from service prior to serving his full enlistment because he had become a burden on his command due to repeated disciplinary matters. He did not serve in combat. Service personnel records confirm that the Veteran participated in firefighting training. The Veteran asserts a stressor about being knocked down during this training and sliding in flames. Service treatment records do not reveal any treatment for injuries, including burn injuries, resulting from any such mishap during firefighting training. In a July 2010 record the Veteran reported being in 2 motor vehicle accidents during service which required hospitalization. In other records he also reported being in motor vehicle accidents during service. Review of the service treatment records indicates that the Veteran was involved in two motor vehicle accidents during service. While he was seen for clinical treatment of complaints of contusions, back pain, and a swollen eye, the records do not reveal that the accidents were severe enough to require hospitalization. Service treatment records also reveal that the Veteran was treated for a swollen eye after an assault. In September 1974 separation examination of the Veteran was conducted. Psychiatric clinical evaluation at that time was normal, with no abnormalities noted by the examining physician. Review of the Veteran's service treatment records fails to show any complaints or diagnosis of any psychiatric disorder during service. Review of the service personnel records confirms that the Veteran was repeatedly a disciplinary problem for his command requiring early separation, but do not show any reports of psychiatric problems. The Veteran has reported that he received private psychiatric treatment in approximately 1976, shortly after he separated from service. He has never provided records of this claimed treatment, nor has he provided the information necessary for VA to attempt to retrieve the claimed records. Moreover, he has subsequently indicated that the care provider is deceased and records cannot be obtained. He has also reported being involuntarily hospitalized for psychiatric treatment in 1990, but again there is no documentation supporting these assertions. The Veteran has made many assertions throughout this appeal which are not supported by, or in some cases are contradicted by, other evidence. In addition the Veteran's assertions at times contradict themselves. For example, while the Veteran has reported a 1990 psychiatric hospitalization, at the October 2016 examination the Veteran alleged psychiatric treatment from 1974 to 1976 and then no treatment again until 2009, and that he had never had any psychiatric hospitalization. As noted by practitioners and described below, the Veteran has given a history that is inherently incredible and as a result has received a diagnosis of delusional disorder. Psychiatric testing in 2016 also indicated he endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders, which the Board finds suggestive of feigning or amplification of symptoms. The Veteran's various reports of serving in Special Forces over a period of decades is directly contradicted by his service records. Thus, the Board finds he is not a credible historian, to include his reports of psychiatric treatment and symptoms and service events. VA medical treatment records dated in October 2009 reveal that the Veteran was seen for his initial visit for establishing VA medical care. On initial evaluation he denied having a history of PTSD or flashbacks. He reported that "if it is too quiet at night he has nightmares," so that he slept with the radio on. He indicated that this did not affect his daily activities or functioning. He also denied having nightmares in the past few months and denied having irritability, anger, or low tolerance. He declined referral for mental health evaluation. Beginning in 2010, VA treatment records reveal that the Veteran was seen for mental health treatment in group and individual outpatient sessions. The diagnoses from 2010 primarily indicate a diagnosis of anxiety disorder. To the extent that there are diagnoses of PTSD, the records indicate that the diagnosis was provisional. A July 2010 mental health note shows that the Veteran was specifically being assessed for his reported PTSD symptoms. Initially, he reported stressors of being a Special Forces operator and participating in operations in Cambodia and Laos. The evaluator specifically noted that these reported stressors were "quite atypical special forces stressors in comparison to descriptions of [special forces] duties by other veterans." For example, when asked about gear and attire the Veteran described using a crossbow and wearing tee-shirts and blue jeans. He also reported being in two motor vehicle accidents during service and that he had also witnessed his younger brother killed in a motor vehicle accident when he was 12 years old. He also reported symptoms consistent with a diagnosis of PTSD such as memory impairment, avoidant behavior, intrusive thoughts and dreams, sleep difficulty, hypervigilance, and exaggerated startle response. However, on mental status evaluation he was alert and oriented. His mood was anxious and depressed with constricted affect. Memory was intact, insight and judgment were good, and he had good impulse control. After the full examination, the diagnosis was anxiety disorder, not otherwise specified (NOS), and again "PTSD provisional." An October 2010 statement from the Veteran's wife says that he "wakes up every night during the night with nightmares," of trying to stop himself from "sliding into a fire." A November 2010 VA mental health treatment record shows that the Veteran reported symptoms very similar to those reported in the July 2010 note above. However this time he reported having three recurrent nightmares; two of the motor vehicle accidents he had while in service and one of interrogating people who become family members. Again the Board notes that at times the Veteran has asserted that he was an interrogator during service, but this is entirely unsupported by the record. This time the evaluator indicated a diagnosis of PTSD, In December 2010 the Veteran submitted a statement indicating that he had sustained injuries in a post-service motor vehicle accident in 2008. The 2008 accident is also documented in records provided by the Social Security Administration (SSA). In June 2011 VA examination of the Veteran was conducted. The Veteran reported that his service personnel records were incorrect and that he had not worked in naval aviation, but in special operations and had been involved as a special operations consultant and interrogator up until the recent conflict in Iraq. He reported serving in combat in Vietnam; Cambodia; Laos; Spain in 1978; Iraq in 1982; and in Panama in 1976. He reported vague allegations of combat missions, being wounded, and killing people. The examiner specifically considered that during service the Veteran was in two motor vehicle accidents and was assaulted so that those non-combat stressors were confirmed. After a full examination, the examiner found that the Veteran did not have PTSD, but had a psychotic disorder which was unrelated to military service or any trauma experienced therein. VA treatment records dated in 2011 indicate varying psychiatric diagnoses including PTSD, anxiety, and depression. In an April 2011 record he denied being in combat but reported being in two truck accidents in service. He acknowledged being "booted out" of the service, but indicated it was due to nightmares and that his separation papers had numerous errors. In March 2012 a private psychologist offered a report and opinion based upon a telephone interview of the Veteran and review of the records. The diagnosis was PTSD and delusional disorder related to service. However, this opinion is based on several inaccuracies such as the psychologist indicating that the 2011 VA examiner linked the Veteran's delusional disorder to service, and that the Veteran was receiving disability benefits from SSA for PTSD. The July 2011 VA examiner did not link the Veteran's psychotic disorder to service and the evidence of record shows that the Veteran receives SSA disability benefits for a knee condition and a heart condition, and a post-service motorcycle accident with knee injury is specifically noted in the SSA medical evidence. Accordingly, the Board finds the diagnosis and opinions expressed in this report to lack probative value. In January 2014 another VA examination of the Veteran was conducted. At this examination he reported a history of mental health treatment by VA only dating back to 2009. He also reported a post-service history of arrest and incarceration for a variety of offenses. The report acknowledged the two in-service motor vehicle accidents, but determined that they were not stressors adequate to support a diagnosis of PTSD. The diagnosis was depressive disorder, which the examiner indicated was secondary to chronic health complications and physical disability; not service. In February 2015 an examination of the Veteran was conducted by a private psychologist using a VA disability benefits questionnaire (DBQ). The indicated diagnosis was major depressive disorder with recurrent psychotic features. The examiner stated that the Veteran was unemployable due to his major depressive disorder and that he "suffers from major depressive disorder more likely than not aggravated by his in-service motor vehicle accident and has continued uninterrupted to the present." The Board finds this opinion to lack probative value. First, it suggests that major depressive disorder pre-existed service, which is not borne out in the record to include the psychologist's own report which states the Veteran "entered the service as a typical individual without mental health issues." Second, it ignores a documented post-service motorcycle accident as a potential stressor. Third, the finding that the Veteran has had depressive symptoms which began during service to the present is not supported by the evidence of record. Specifically, this report ignores the normal psychiatric evaluation at separation from service, which is in direct conflict with a finding that symptoms began during service. The separation examination report showing a normal psychiatric evaluation is accorded high probative value as it was done contemporaneous to service for the purpose of identifying disability such as that now claimed by the Veteran. Moreover, the asserted continuity of symptomatology is apparently based upon the lay statements of record (as such is not reflected in the medical evidence of record) which are found to lack credibility in light of the varying conflicting reports of medical history and stressors asserted throughout the claim. In October 2016 the most recent VA Compensation and Pension examination of the Veteran was conducted. Again, at this examination the Veteran asserted an incredible military history of being in special operations from the day he first got to boot camp and that there is no documentation in his military records because it was "all redacted." The Board notes the Veteran's service documents are not redacted but instead show he was not in special operations or an interrogator. The Veteran reported experiencing symptoms of nightmares about being in a truck accident since 1974. The examiner noted that the Veteran reported various facts such as being on SSA disability for PTSD and serving in Special Forces, which had no records for confirmation. As noted above, the available evidence of record actually contradicts both of these assertions by the Veteran. Psychological testing performed at the examination suggested "endorsement of a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders." The diagnoses were: unspecified schizophrenia spectrum and other psychotic disorder and other specified trauma and stressor related disorder. The examiner indicated that the Veteran's schizophrenia was not related to service and that an opinion as to the other specified trauma and stressor related disorder could not be made without speculation. The Board finds it reasonable that the examiner could not offer an opinion as to the etiology of the other specified trauma and stressor related disorder as the psychiatric testing suggested the reported symptoms were atypical and the reported history was not consistent with the Veteran's service. The examiner did note that the Veteran did not meet the full criteria to support a diagnosis of PTSD and that his reporting of symptoms and treatment prior to 2009 were not supported by any other evidence. The Board acknowledges that there are diagnoses of PTSD contained in the Veteran's VA treatment records. However, on close review most, if not all, of these diagnoses are based on a prior notation in the records and merely carried forward in the treatment records. Multiple VA Compensation and Pension examination reports indicate that the Veteran does not meet the full criteria for a diagnosis of PTSD. These are found to be more probative than the treatment records as the examinations were performed for the specific purpose of determining which psychiatric disorders were present and included a more complete review of the Veteran's history. The probative medical opinions of record do not link any current psychiatric disorder to service. To the extent that there are private medical opinions which link the Veteran's current psychiatric disorders to service, the Board finds them less probative than the VA opinions as they are based upon incorrect facts, or a continuity of symptomatology based on lay statements which lack credibility in light of the other evidence of record. In sum, the preponderance of the evidence is against a finding that the Veteran's current psychiatric disorders were diagnosed during service or for many years thereafter. The preponderance of the evidence is also against a finding that there is a link between the current psychiatric disorders and active service. Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a psychiatric disorder, to include PTSD, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs