Citation Nr: 1805721 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-36 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, anxiety, and a panic disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Navy from January 1993 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, denying the claim of entitlement to service connection for PTSD. The RO in Portland, Oregon currently has jurisdiction over the Veteran's claims file. In September 2010, November 2013, and September 2014, the Board remanded the Veteran's claim for additional development. In October 2017, the Veteran's claim was again remanded for additional development to include contacting the Veteran to obtain additional details regarding his "alleged" in-service stressors, obtain deck logs for the USS Denver for purposes of verifying the Veteran's asserted stressors and obtain an etiological opinion regarding the Veteran's acquired psychiatric disorder. As the requested development has been completed, this matter has now returned to the Board for appellate consideration. FINDINGS OF FACT 1. The record does not reveal credible evidence of the occurrence of the Veteran's alleged in-service stressors. There is also no medical evidence of a link between the alleged in-service stressors and the Veteran's current diagnosis of PTSD. 2. The Veteran's acquired psychiatric disorder is not etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. A VA examination has been conducted and any necessary opinions obtained. Neither the Veteran nor his representative has raised any 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 duty to assist argument). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2015); 38 C.F.R. §§ 3.303 (a), 3.304 (2017). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2017). In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for post-traumatic stress disorder (PTSD) To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a), which requires it be diagnosed in accordance with the DSM; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). If the PTSD is related to fear of hostile military or terrorist activity, then corroboration is not necessary, if the stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. In this case, the Veteran contends that he is entitled to service connection for PTSD and that his condition was caused by or related to his active service. The Veteran's STRs do not show any complaints, symptoms, treatment, or a diagnosis of a psychiatric condition. Enlistment documents from July 1992 indicate that the Veteran was approved for active service. A report of medical history at separation in June 1994 makes no reference to any significant medical conditions. Review of post-service treatment records revealed a history of treatment for depression and anxiety. In 2005, the Veteran sought treatment for his psychiatric symptoms from a private physician; chronic insomnia was also reported. Subsequent treatment continued at a VA facility and the Veteran was diagnosed with dysthymia and probable Attention Deficit Disorder. Outpatient treatment between 2007 and 2009 yielded additional diagnoses of mild PTSD, a mood disorder-not otherwise specified, and a traumatic brain injury. Oral prescription medications, including Citalopram and Mirtazapine have been used to treat his symptoms. In order to assess the nature and etiology of the Veteran's psychiatric symptoms, he has undergone numerous VA examinations. During an evaluation in June 2009, the Veteran reported a history of heavy drinking and alcohol abuse. He also admitted trying LSD and intermittent use of marijuana. Prior participation in alcohol treatment program at VA facilities as well as multiple public intoxication charges was reported. Current symptoms included panic attacks, problems with crowds, and sleep impairment. As to in-service stressors, the Veteran indicated that he was "knocked out twice" due to high waves and thrashing during a four-day typhoon. He experienced chronic nightmares following incident. Post-service, the Veteran reported working as a cook, moving/delivering furniture, and loading trucks. He also reported problems with homelessness and indicated that he had few friends due to social isolation. On examination, the Veteran was described as hesitant, with logical thought processes and normal cognition. His affect was deemed mildly restricted. No suicidal/homicidal ideation, hallucinations, or delusions were reported. His judgement, attention, concentration, and insight were deemed acceptable; however, his recent and remote memory was noted as decreased. Following the clinical interview, the examiner noted non-service connected diagnoses including a mood disorder - not otherwise specified, cognitive disorder-not otherwise specified, alcohol dependence (reportedly in remission) and cannabis abuse (reportedly in remission). The examiner diagnosed the Veteran with PTSD, but opined that his current symptoms could not be directly linked to the "alleged" stressor identified by the Veteran. In reaching the stated conclusion, it was noted that the Veteran had a history of traumas throughout his lifetime, including an extended period of homelessness. An inability to obtain information sufficient to verify the veteran's "alleged" in service stressor was also noted. In October 2010, the Veteran underwent a subsequent VA examination. The examiner noted the Veteran's history of providing conflicting accounts of post-service trauma during psychiatric treatment. Current symptoms were listed as depression, headaches/physical pain, chronic sleep impairment, nervous breakdowns, memory and concentration problems. The Veteran denied hallucinations or delusions but reported having suicidal thoughts "sometimes." On examination, the Veteran was observed as clean/appropriately dressed, and oriented as to place and time. The examiner noted his marginal to poor insight, impaired judgement, and blaming behavior. No evidence of panic attacks or poor impulse control was noted. Following the clinical interview, the examiner concluded that it is less likely than not that the Veteran's depression, alcoholism, or cannabis abuse was caused by or related to his active service. In support of this conclusion, the examiner indicated that the Veteran's history of alcoholism and recent financial struggles were the likely cause of his cognitive disorder. It was also noted the Veteran's STR's made no reference to a diagnosis or treatment for a cognitive disorder or depression. Prior diagnoses of alcohol dependence (in partial remission), cannabis abuse (in remission), depressive disorder, and cognitive disorder were noted. The examiner also indicated that the Veteran was unable to function adequately as to routine work due to his alcohol abuse and that it will likely continue to impede his cognitive skills. The Veteran's occupational and social functioning was listed as severely restricted with marginal to poor insight and judgement and an inability to manage his own finances. On examination in March 2017, the examiner confirmed a prior diagnosis of PTSD with personality disorder, alcohol and cannabis use disorders (in early remission). In light of the evidence of record, the examiner opined that it was less likely than not, that the Veteran's personality disorder and alcohol/cannabis use disorders were related to active service. In reaching the aforementioned conclusion, it was noted that the Veteran's symptoms of PTSD were possibility related to military trauma, however, without verifiable stressors, the examiner was unable to establish a link between the condition and active service. Further, the Veteran's extensive trauma history prior to service was deemed the more likely cause or most significant contributor to the Veteran's PTSD. A lack of prior medical evidence linking the Veteran's mental health conditions to active service was also noted. Pursuant to an October 2017 Board remand decision, the Veteran was afforded a new examination in December 2017. During the clinical interview, the Veteran described current symptoms including worsening depression, anxiety, chronic pain, tearfulness, confusion, feeling down, and lack of energy. He also reported prior alcohol and cannabis abuse; however, both are in remission. The Veteran denied suicidal/homicidal ideation or the experience of hallucinations. However, he did report experiencing a sensation of "spacing out" or like "his head is in a fog." Two prior suicide attempts were reported. In response to inquiries regarding his familial and social relationships, the Veteran reported that he is one of five children and does not maintain a current relationship with mother or siblings. He noted a family history of alcoholism from both parents, although his father was reportedly sober. At the age of 15, his parents divorced. Following the death of his father, the Veteran lived with his grandparents. He stated that he was physically assaulted by two kids during childhood. The Veteran indicated that he had good friendships during childhood and positive relationships with his shipmates during service. He denied any current friendships, girlfriends, and has never been married. The Veteran attempted suicide in 1999 following a domestic assault accusation. During the incident, he reportedly jumped off of a two story building and suffered a significant fall which caused a skull fracture and vertebrae damage. The Veteran contends that the domestic abuse accusation was false; however, his family believed it to be true. He admits serving one year in jail for the alleged assault. A subsequent attempt was reported, in which the Veteran reportedly crashed his motorcycle. Post service, the Veteran obtained an undergraduate degree and admitted working in numerous white collar and blue collar jobs. He noted difficulty maintaining employment due to anxiety and problems working with people who are loud. On examination, the examiner observed the Veteran as alert, oriented as to time and space, with logical thought processes. Some confusion was noted during the examination. The examiner diagnosed the Veteran with PTSD, alcohol use disorder, and cannabis use disorder. The latter two conditions were deemed in remission. Although the examiner noted a prior diagnosis of a personality disorder, this condition was not confirmed during the examination. In analyzing the Veteran's claim for service connection for PTSD, the examiner noted the Veteran's extensive history of trauma and indicated an inability to differentiate the symptoms between his past trauma exposure and active service. The examiner also noted that the alleged traumatic military stressors could not be verified. Therefore, the examiner opined that isolation of the military trauma could not be accomplished without resorting to mere speculation. The examiner also opined that the Veteran suffers from occupational and social impairment with reduced reliability and productivity. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). On review of the evidence, the Board finds that service connection is not warranted. It is well-noted that the Veteran contends that his psychiatric condition was caused by or related to his active service. In support of his contention, the Veteran reported stressors including witnessing a Marine killed in Mogadishu; witnessing a sailor being burned with cooking grease when the ship hit a wave; and being "knocked out twice" during a typhoon in the South China Sea. All of the events noted reportedly took place in 1993 or 1994 while stationed aboard the USS Denver. The Board notes the command history for USS Denver (LPD 9) for the calendar years of 1993 and 1994 were obtained. A review of the records did not yield corroborating evidence of the Veteran's alleged stressful experiences during active service. While the Board acknowledges the Veteran's competence to report on observable symptoms, the medical evidence does not reveal a "nexus" between his psychiatric condition and active service. It is noted that the Veteran submitted an Appellate Brief, dated January 2018, asserting entitlement to a subsequent VA examination due to the December 2017 examiner's inability to provide a conclusive opinion as to the etiology of his psychiatric symptoms. The Board finds that a new examination is not warranted. In this case, the VA examiner provided an opinion indicating an inability to isolate the Veteran's psychiatric symptoms related to military trauma from his prior trauma history without resorting to mere speculation. In support of the stated finding, the examiner noted a lack of evidence verifying the Veteran's "alleged" in service stressors. On the review of the record, the Board finds the aforementioned opinion adequate as it draws a logical conclusion, based upon a review of the record evidence, and notes a rationale for the reasonably conclusion. Further, a new examination is unlikely to yield different results as the Veteran's asserted in-service stressors remain unverified. Accordingly, as the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the Veteran's claim. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, anxiety, and a panic disorder. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder other than PTSD, to include depression, anxiety, and a panic disorder. The preponderance of the evidence is against his claim. The Board notes that the Veteran's service treatment records are silent for any complaints, treatment or a diagnosis of an acquired psychiatric condition. Post-service treatment records reveal ongoing complaints of treatment for depression, anxiety and related symptoms. A staff psychiatrist note, dated June 2010, referenced a diagnosis of personality disorder, not otherwise specified, with anti-social features. Pursuant to an October 2017 Board remand, the Veteran was afforded a VA examination to assess the nature and etiology of his psychiatric symptoms. As previously indicated, the examiner noted an inability to isolate and distinguish the Veteran's psychiatric symptoms related to military trauma from those related to his prior trauma history without resorting to mere speculation. The opinion also acknowledged a prior diagnosis of a panic disorder, but declined to confirm the previously rendered diagnosis during the December 2017 examination. In reaching the stated determination, the examiner noted that a diagnosis of an anxiety or panic disorder was not reached during the recent evaluation. Further, independent of the psychiatric conditions noted, the Veteran's prior history includes pre-military trauma and alleged in-service stressors. On examination, the examiner was unable to determine origin of the Veteran's symptoms of depression as related to his pre-military trauma or his alleged in-service stressors. While the Board has fully considered all lay and medical evidence of record, it nevertheless concludes that service connection is not warranted as the evidence of record does not reveal a "nexus" between the Veteran's symptoms of depression and anxiety and his active service. The Board recognizes that the Veteran believes he is entitled to service connection for a psychiatric disability. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as linking a current medical diagnosis to events that occurred years earlier. Accordingly, as the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the Veteran's claim. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, anxiety, and a panic disorder is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs