Citation Nr: 18142660 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 13-28 532 DATE: October 16, 2018 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and secondary substance abuse disorder, is denied. FINDING OF FACT Prior to his death, the Veteran had valid diagnoses of unspecified depression and a substance abuse disorder. The depression first manifested many years after service and was unrelated to service or to any incident therein. The substance abuse disorder was not related to any service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.310, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to December 1980. This appeal comes to the Board of Veteran’s Appeals (Board) from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In September 2016, the Board reopened the claim for service connection for a psychiatric disorder, to include PTSD, depression and/or anxiety, as well as secondary substance abuse disorder, and remanded the claim to the RO for additional development. In March 2017, the Veteran died. In July 2017, the RO determined that the son of the Veteran is eligible for substitution, and the claim for service connection for a psychiatric disorder, to include PTSD, depression and/or anxiety, as well as secondary substance abuse disorder was returned to the Board on appeal. Although the Veteran originally claimed a mental health condition, to include PTSD, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed. See Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and/or anxiety, and secondary substance abuse disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). For the purposes of establishing service connection, medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125(a), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) as the source of criteria for the diagnosis of claimed psychiatric disorders. The appellant contends that the Veteran had a mental condition and substance abuse disorder as the result of his active duty service. The Veteran stated that he had stress during service due to being at the mercy of the sea, never knowing if they would get to port, and witnessing several deaths. The Veteran’s statement that he saw several deaths cannot be corroborated. No documentation in the file suggests instances of the Veteran witnessing deaths during his peacetime service. The RO provided the Veteran with an opportunity to provide additional, specific, information regarding these events, but a statement was received indicating that he was unable to provide specific information due to his deteriorating health. Therefore, the Veteran’s reports of the deaths he witnessed remain unconfirmed. The initial question before the Board is whether the Veteran was diagnosed with a mental disorder during the pendency of the appeal that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a diagnosis of PTSD during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The record indicates that the Veteran had positive PTSD screens in January 2008 and April 2013 through primary care clinics, and that a primary care note from December 2013 is also suggestive of a diagnosis of PTSD. However, those assessments were performed by staff that are not specialized in mental health. Prior to those findings, there was no suggestion in the Veteran’s medical records that he suffered from PTSD. In August 2015, December 2016 and February 2017, VA examiners, specialized in psychology, evaluated the Veteran and determined that he did not meet the diagnostic criteria for PTSD. While the appellant believes, based on the Veteran’s statements, the Veteran had a mental disorder, the Veteran was not competent to provide a diagnosis of PTSD, as he did not have the requisite skills and training. Additionally, although the indications of PTSD were provided by individuals working in the health care field, those individuals were not specialized in mental health. PTSD is medically complex, and its diagnosis requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of the VA examiners specialized in the field of psychology. Each examiner found that there was no indication for the diagnosis of PTSD. The February 2017 examiner explained that the Veteran does not meet the DSM-V criteria for PTSD, and that no documentation of specific symptoms of PTSD had been found that would suggest he met full criteria for the diagnosis of PTSD. Therefore, it has not been established that the Veteran was ever sufficiently diagnosed with the condition of PTSD. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the VA examiners did not diagnose the Veteran with PTSD, the August 2015 examiner indicated that there may be some underlying depression. The February 2017 examiner did find that the Veteran met the requirements for unspecified depression. However, it was indicated that the Veteran was primarily struggling with difficulty managing pain and health problems and his adjustment to this. The examiner noted that there was no indication of clinically significant symptoms of depression at an exam in in October 2005, and that a February 2012 examination found few signs of anxiety. The examiner opined that the Veteran’s current diagnosis of unspecified depression was less likely than not incurred in service due to the lack of evidence supporting that his depression is related to his service. Therefore, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for depression and/or anxiety. The only medical nexus opinion of record weighs against the claim. Prior to rendering an opinion, the February 2017 examiner reviewed the claims file. She relied on her own knowledge and expertise when determining that it was less likely than not that the Veteran’s claimed depression and/or anxiety was incurred in or caused by service. Her opinion was well-reasoned and articulated, considered the information provided by the Veteran in his prior examinations, provided an astute alternative etiology for his disability, and reflected utilization of the DSM. The Board has considered the Veteran’s lay statements regarding the etiology of his depression and/or anxiety. The Board notes that 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, a nexus between the acquired psychiatric disorder and military service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s current psychiatric disorder to his active service. The August 2015 and February 2017 examiners also diagnosed the Veteran with substance abuse disorder. The appellant asserts that the Veteran’s substance abuse disorder began in the service after he received treatment for a cut on his arm, which occurred when a sailor next to him fell overboard and stabbed a knife into his arm to stop his fall. The Veteran stated that he had to use painkillers and began using cocaine for pain after he ran out of the painkillers that had been prescribed. Although we accept the Veteran is competent to state his perceptions, the record provides no evidence that painkillers were prescribed. All that appears to have been prescribed were topical antibiotic creams. Also, the medical records indicate the Veteran sustained a shallow cut four inches long. The Board notes that the Veteran had presented evidence that he suffered from cocaine dependence. Multiple VA treatment records, including an October 2005 VA examination report, state that the Veteran suffers from cocaine dependence. In addition, the Veteran stated in the August 2015 VA examination that he continued to use cocaine and did not plan on stopping. The Veteran stated he began using some type of drugs during service. The Veteran himself has stated that he began using cocaine in 1978, during his period of active service. Also, the Veteran was noted in a July 1980 service treatment record to have a history of recurrent continuous drug use. Generally, “no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.” 38 U.S.C. § 1110. However, veterans may be service-connected for a drug-related disability if they can “adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder.” Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001); reh’g denied, 268 F.3d 1340 (Fed. Cir. 2001) (en banc order). As of the date of his appeal, the Veteran had been service-connected for three disabilities, two of which he claimed had caused him to use cocaine. In a May 2005 letter, the Veteran asserted that his cocaine use was attributable to his skin disability, which was service-connected as tinea versicolor. The Veteran alternatively asserted that his cocaine dependence was a result of an accidental knife laceration he suffered to his right arm during service. The Veteran was service-connected for a residual scar from that incident, which, according to the Veteran’s service treatment records, occurred in March 1978. The Veteran was also service-connected for hepatitis C, but no assertion was made that his substance abuse disorder was connected to his hepatitis C. The Board acknowledges the Veteran’s statements that his cocaine dependence was related to his service-connected disabilities. However, there is no competent evidence of a causal connection. Although lay persons are competent to provide opinions on some medical issues, See Kahana, as to the etiology of the Veteran’s substance abuse disorder and whether it is etiologically related to the Veteran’s active service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. Accordingly, the Veteran’s statements are lay evidence that do not constitute competent medical evidence and lack probative value. The October 2005 examiner opined that the Veteran’s cocaine dependence was not related to his service in the Navy. Rather, the examiner suggested that the Veteran’s cocaine dependence was a product of a behavioral problem. To support this opinion, the examiner noted that the Veteran was diagnosed with an adjustment disorder and antisocial personality traits during service. The Board finds this medical evidence probative as the opinion provides precise factual information and sound medical reasoning based on the examiners knowledge and expertise in concluding the etiology of the Veteran’s substance abuse disorder. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Reinforcing the October 2005 opinion, the August 2015 examiner agreed with the October 2005 examiner’s assessment in correlating the Veteran’s continued use of cocaine and alcohol to his personality disorder. The Board also finds substantial compliance with the September 2016 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Pursuant to the September 2016 remand, all relevant treatment records have been obtained, notice was sent to the Veteran regarding the claim for a psychiatric disorder, to include PTSD, depression and/or anxiety, and secondary substance abuse disorder, the Veteran was provided the opportunity to submit additional information, all treatment records were provided to the VA Examiner, she specifically discussed the Veteran’s previous VA psychiatric examinations in October 2005 and August 2015, discussed the noted diagnoses of PTSD and depression in the Veteran’s VA records, discussed the SSA records, and she provided detailed rationale for the opinions provided. (Continued on the next page)   Accordingly, as the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, depression and/or anxiety, and secondary substance abuse, the benefit of the doubt rule does not apply and the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Temple, Associate Counsel