Citation Nr: 1806273 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-16 673A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizophrenia. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Counsel WITNESSES AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to September 1971 including service in the Republic of Vietnam from February 1970 to March 1971. The Veteran died in August 2016. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the RO substituted the Appellant as a claimant in this appeal. The Appellant testified before the undersigned Veterans Law Judge in June 2017. A transcript of the hearing is of record. This matter was previously before the Board in September 2015, April 2017, and September 2017 and was remanded for additional development, which has been completed. FINDINGS OF FACT 1. The Veteran did not have a psychiatric disorder consisting of PTSD and did not have PTSD during any portion of the appeal period. 2. The Veteran's schizophrenia was not caused by or otherwise related to his active service. CONCLUSIONS OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and schizophrenia, have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and Appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran has previously reported that there were several plane crashes at Da Nang Air Base, losing two members of his unit while in Da Nang and Phu Cat Air Force Bases. He also recalled smelling burned flesh and essentially being in fear for his life in Vietnam. At a March 2016 VA examination, the Veteran reported additional two stressors. The first was that he was not treated well after returning from Vietnam. The second was that while in Vietnam, he and an allied soldier got into a verbal dispute with the soldier putting his gun to the Veteran's head. A June 17, 1969 service personnel record notes that the Veteran had a lack of proper hygienic practices. A July 6, 1971 service treatment record (STR) shows a diagnosis of passive aggressive personality, and it was noted that there was no evidence of a psychiatric disease. A July 13, 1971 service personnel record notes that his personality characteristics supported the diagnosis of character behavior disorder, passive aggressive type. The July 28, 1971 separation exam report shows a normal psychiatric evaluation, and the Veteran reported not having depression or excessive worry; frequent trouble sleeping; frequent or terrifying nightmares; loss of memory or amnesia; nervous trouble of any sort; any drug or narcotic habit; or an excessive drinking habit. An August 3, 1971 service personnel record shows that the Veteran was discharged because of his attitude of belligerence and non-conformity. A post-service August 2005 VA treatment record notes that the Veteran presented to the emergency room for PTSD. However, he was diagnosed with rule out PTSD; alcohol dependence; and marijuana abuse. A September 1, 2005 VA treatment record indicates that he had some symptoms of PTSD including avoidance of people and crowds, insomnia, and hypervigilance. He was diagnosed with alcohol dependence; marijuana abuse; PTSD traits per report; and passive aggressive personality disorder per history. A September 26, 2005 VA treatment record shows diagnoses of schizophrenia and rule out PTSD. The Veteran was provided a VA examination in January 2007. The examiner diagnosed schizophrenia, undifferentiated type; and polysubstance abuse. He also noted that the "substance abuse disorder is due to the primary service-connected mental disorder of schizophrenia." However, the examiner did not provide a nexus opinion for schizophrenia. Dr. Will, a VA psychiatrist, indicated in a May 2007 letter a diagnosis of PTSD from combat exposure in the Vietnam War and schizophrenia, undifferentiated type. Dr. Will noted that she reviewed his military records dated June 17, 1969 through August 3, 1971 and his personnel file concerning his discharge for character and behavior disorder, and opined that the symptoms of the onset of PTSD at the time included his anger and irritability, being disorderly in station, and conflict with his supervisors. The Veteran was afforded a VA examination in March 2016. The examiner only diagnosed severe alcohol use disorder. She stated that his symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner indicated that there was no record to adequately support a PTSD diagnosis. Regarding Dr. Will's May 2007 letter, the examiner indicated that the Veteran demonstrated behavior problems in the military prior to his Vietnam tour and thus, his in-service behavior was not indicative of combat-related stress. Further, the examiner opined that there is no evidence to indicate that his alcohol use was related to his military service. An addendum VA medical opinion was obtained in October 2017. The examiner stated that per the Veteran's records, there was no diagnosis of PTSD. She explained that although he reported PTSD traits, diagnoses of PTSD were provisional and thus, in the opinion of his treating provider he did not meet the full criteria for a diagnosis. The examiner also noted that previous VA examinations did not yield a PTSD diagnosis. Regarding schizophrenia, the examiner noted that he was evaluated prior to his administrative discharge from the service and was determined as having "no psychiatric disease." The examiner indicated that his being "belligerent" and "disorderly" is not adequate evidence that the Veteran was exhibiting symptoms of schizophrenia. Further, she noted that the records are silent for mental health complaints until 2005. The examiner stated, "[t]here is no way to reliably link a 2005 diagnosis of schizophrenia with a stressor that occurred 35 years prior." She explained that had the Veteran experienced an onset of schizophrenia related to in-service trauma, it is likely that there would be record of ongoing complaints and treatment. In addition, the examiner stated that a determination was further complicated by the Veteran's alcohol dependence. The examiner concluded that it is less likely than not the Veteran's schizophrenia was due to his military service. Although the Board concedes that the Veteran was exposed to hostile military or terrorist activity during service, the preponderance is against the claim of service connection for an acquired psychiatric disorder. The most persuasive evidence, which is the March 2016 and October 2017 VA opinions, shows that the Veteran did not meet the criteria for PTSD and his schizophrenia was not related to service. The Board finds these opinions to be persuasive as the examiner conducted an in-depth review of the Veteran's service and post-service medical history; thus providing her a longitudinal review of the Veteran's symptoms and clinical evaluations and she also conducted a clinical examination and interview with the Veteran in March 2016. This is consistent with his VA treatment records showing provisional diagnoses of PTSD. Although a September 27, 2005 VA treatment record includes a notation of severe PTSD and that he had one of the diagnoses of PTSD, schizophrenia or related psychosis or bipolar disorder, a September 26, 2005 VA treatment record shows diagnoses of schizophrenia and rule out PTSD and an October 2005 VA treatment record shows that his PTSD score during the PTSD screen was less than 3, which was determined to be negative and no further evaluation was indicated. Further, a November 2005 VA treatment record shows a diagnosis of rule out PTSD. To the extent that the Appellant and Veteran believed he had an acquired disorder that was related to military service, they were not competent to make such a determination. Although the Veteran may have been competent to relate observations of how he may have felt or what he experienced, he and the Appellant were not competent to determine the nature and etiology of a complex medical condition such as a PTSD, or other clinical psychiatric disorders. This is because they had not demonstrated possession of the requisite medical knowledge, training, or experience needed to do so. Therefore, their lay opinions on the nature and etiology of his psychiatric disorder are neither competent nor probative evidence in this regard. The only competent evidence linking PTSD to service was Dr. Will's May 2007 letter. However, the Board assigns little probative weight to Dr. Will's opinion because it is not consistent with the totality of her treatment records which do not show a definitive diagnosis of PTSD. For example, March 2007 and June 2007 treatment records show a diagnosis of rule out PTSD. The diagnosis of PTSD was not confirmed in Dr. Will's treatment records and in April 2011 she diagnosed rule out PTSD. Regarding schizophrenia, there is no competent evidence of record linking this disorder to service. The record is replete with references to substance abuse disorders. However, the Veteran's substance abuse constituted willful misconduct. The Board emphasizes that service-connected disability compensation is precluded for a disability that is the result of the Veteran's willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1110; see also 38 C.F.R. §§ 3.1(m), (n), 3.301; VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). Regarding the Veteran's diagnosis of a personality disorder, service connection cannot be granted for a personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997) (specifically holding that 38 C.F.R. § 3.303(c), as it pertains to personality disorder, is a valid exercise of the authority granted to the Secretary of Veterans Affairs); see also Beno v. Principi, 3 Vet. App. 439, 441 (1992). However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder), by superimposed disease or injury. See VAOPGCPREC 82-90, 55 Fed. Reg. 45, 711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); and VAOPGCPREC 82-90. The Board finds no evidence of additional disability due to in-service aggravation of any personality disorder by superimposed disease or injury during service. Therefore, the Board finds that service connection for an acquired psychiatric disorder is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs