Citation Nr: 18144250 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 12-26 384 DATE: October 24, 2018 ORDER Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran does not have residuals of a head injury. 2. An acquired psychiatric disorder, to include PTSD, did not manifest in service and is not attributable to service, to include an in-service stressor. A psychosis was not manifest within one year of service. CONCLUSIONS OF LAW 1. Residuals of a head injury were not incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. (2017) 2. An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by service. A psychosis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. A personality disorder is not considered a disease or injury for purposes of VA compensation. 38 C.F.R. §§ 3.303, 4.9, 4.127. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to November 1980. The Veteran appeared at a Board hearing in January 2013; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. A February 2015 Board decision denied these two issues. As part of the denial, the February 2015 Board decision found the in-service assault – which is the basis for both claims – was due to willful misconduct. The Board also found that the Veteran had no competent evidence of a current diagnosis of PTSD. A May 2016 order of the United States Court of Appeals for Veterans Claims (Court) implemented a May 2016 Memorandum Decision, vacating and remanding the February 2015 Board decision. The May 2016 Memorandum Decision noted that the Board failed to provide an adequate basis for denying PTSD. As noted by the Court, the Veteran had been provisionally diagnosed with PTSD on multiple occasions in treatment records. The Court also found the VA did not make reasonable efforts to obtain relevant records, as no efforts were made to obtain any military police or other incident reports related to the in-service assault. Additionally, the Court stated the Board provided inadequate reasons and basis for finding the Veteran engaged in willful misconduct and was barred from receiving benefits as a result. The Board remanded these matters in December 2016 and in February 2018. The first Board remand requested outstanding VA treatment records be obtained, records regarding an in-service assault occurring sometime between August to November 1980 be obtained, and to schedule VA examinations. The second Board remand requested Social Security disability records be obtained and that attempts be made to obtain records of confinement from the Corrections Management Information System (CORMIS) and supplemental VA opinions be obtained if any additional relevant records were associated with the file. As noted below, VA examinations and addendum opinions and additional VA and Social Security records were obtained. VA personnel made attempts to obtain records regarding confinement related to an assault in November 2011 or thereabouts, including from the Headquarters of the Naval Criminal Investigative Service (NCIS), the Navy Safety Center, the Judge Advocate General, and the Marine Corps Corrections Headquarters, the last of which found no records in CORMIS. All responses reported records related this confinement did not exist. For these reasons, the Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Conduct The Veteran received a non-judicial punishment related to an assault he committed, which occurred in September 1980. In his Board testimony, the Veteran reported he was assaulted and injured in November 1980. He also stated he was not treated for injuries, as he was turned away from the base hospital. The Veteran’s service records show he was disciplined for failure to comply with the miliary police in October 1980 and for disobeying a lawful order in November 1980. Neither of these refer to an assault. The Veteran separated from service in November 1980 under honorable conditions. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131 (2012). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Residuals of a head injury The Veteran claimed residuals of head injury – as well as his claimed PTSD – are due to an in-service assault. The Veteran claimed injuries to the back, head, neck, and body. At his February 2013 Board hearing, the Veteran reported his current symptoms as black-outs, inability to sleep, anger, loss of feeling in his fingers, and nerve problems in his neck. The Veteran reported he also had formerly had headaches. The Veteran does not have a TBI or another neurological disorder associated with residuals of a head injury. VA treatment and private records dating back many decades do not note an ongoing neurological problem. In November and December 2007, the Veteran reported to a non-VA emergency room in Las Vegas after a physical assault, but no head trauma or neurological difficulties were found on examination. The next relevant treatment record is a VA record from September 2008 and notes in the neurological section that the Veteran had grossly intact cranial nerves. The Veteran’s claim form stated he received treatment for a head injury starting in August 2010. Private treatment records dated in July 2010 noted the Veteran had no neurological abnormalities, including headaches, syncope, seizures, number, or tingling. Subsequent treatment records and a March 2011 Social Security disability consultative examination likewise do not note ongoing neurological issues or other residuals of a head injury, due to either an assault in service or from the post-service assault. For example, one of more recent treatment notes, a March 2018 VA medicine admission history and physical note states the Veteran reported to the emergency room with dizziness, his medical history included hypertension, hypersensitivity lung disease, polysubstance abuse (cocaine), non-ST elevation myocardial infarction (NSTEMI), PTSD, and schizophrenia. Neurological signs were normal; orientated to time, place and person; and cranial nerves II-XII were intact with no focal signs. In October 2017, the Veteran had a VA examination. The examiner reported the Veteran had impaired memory (mild loss), impaired judgment, and impaired social interactions. He was normal in other areas, such as orientation, motor activity, visual spatial orientation, but did report mild headaches and mild anxiety. The examiner found no objective evidence of traumatic brain injury and reported that none of the Veteran’s treating physicians in the service or afterward had ordered a CT scan of the head or MRI of the brain. This would have been ordered had any of the physicians felt that the studies were medically indicated of residuals of trauma. There were no findings consistent with TBI on the physical examination that included a detailed neurological assessment. The neurological examination was all normal, including mental status, cranial nerves, coordination, motor exam, sensory exam, Babinski sign and other reflexes, Romberg testing, gait, tandem walking, and heel and toe walking. The examiner noted there was no diagnosis of a traumatic brain injury (TBI) and opined a disability was less likely than not incurred in or caused by military service. The rationale was there is no evidence in the service treatment records of a head injury and current symptoms are psychological in etiology and not evidence of TBI. In a May 2018 VA opinion, the examiner was asked to identify any current neurological disorders, to include residuals of a head injury. The examiner stated a disability associated with a head injury was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted review of claims file. The examiner reported the Veteran had an assault post-service, leading to treatment in November 2007 with followup in December 2007. At that time, the Veteran reported a recent injury to the head caused by someone hitting him, but he did not report loss of consciousness and was found to be atraumatic, with neurological examination nonfocal and intact. The examiner noted that there were no neurological symptoms at the time of the examination in December or November 2007 and reported the findings of the past October 2017 examination. The examiner also noted the Veteran had difficulties with sleep, anxiety, and nightmares, which where psychological in nature and not due to neurological defects, as well as depression and substance abuse. According to all the evidence, residuals of head trauma have not been present during the appeal, therefore, the Veteran does not have a relevant disability and the claim must be denied. In reaching this conclusion, the Board uses the definition of disability as noted in Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991), which stated that the definition of disability comports with the everyday understanding of disability, which is defined as an inability to pursue an occupation because of physical or mental impairment. Here, there is no functional impairment caused by residuals of head trauma or symptoms thereof reported in VA examinations, the Veteran’s testimony and statements, or in treatment records during the relevant period. The Board concludes the Veteran does not have a residuals of head trauma within the meaning of the VA compensation law and the claim must be denied. 2. Acquired psychiatric disorder The Veteran claimed PTSD with depression as due to service, specifically the in-service assault. His August 2010 applications for compensation states that his disability started in November 1980, when the claimed assault occurred. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). The Veteran’s November 1980 separation examination notes the Veteran was clinically normal in all areas. There was no report of medical history at separation. Service records do not note treatment for mental health issues. According to the Veteran, he was first diagnosed with an acquired psychiatric disorder while imprisoned after service. The Veteran reported he participated in mental health treatment for violence when incarcerated. Attempts to obtain any treatment records from prison were unsuccessful, as the relevant record keepers found no records for the Veteran existed. The Veteran has a long history of medical health issues documented in numerous private and VA treatment records. Starting in 2001, the Veteran had private treatment, with report depression, suicidal ideation, and substance abuse. He was treated for homicidal ideation, polysubstance abuse, and polysubstance induced depression and substance-induced psychotic disorders at VA from 2009 onwards. A VA September 2008 VA homeless program note found that the Veteran had an adjustment disorder. Numerous VA assessments from 2010 onwards diagnosed substance abuse and dependency (cocaine, alcohol, marijuana, etc.), found a history of psychosis not otherwise specified, and paranoid personality disorder with antisocial personality features, major depression, and suicidal ideation. An October 2010 VA assessment for admission to PTSD outpatient treatment could not make a definitive diagnoses of PTSD, that the Veteran’s symptoms would be described by other Axis I disorders, and other mental health problems would likely interfere with trauma focused treatment of PTSD. The provisional diagnosis section reports psychotic disorder and alcohol and drug dependency. The Veteran saw a psychiatrist monthly from September 2013 to December 2016 as part of the HUD-VASH program, who reported the Veteran continued to have hallucinations and delusions after becoming sober and diagnosed him with schizophrenia. VA treatment records afterwards focused on paranoia. In May 2014, a social worker entered a diagnosis of PTSD, put it is unclear what this assessment was based on. Upon referral for PTSD outpatient treatment in June 2014, a VA psychological intern and a staff provider found that the Veteran was vague regarding the actual assault and aftermath. The Veteran did not appear to meet criteria for PTSD at the time due to an unverifiable stressor and lack of endorsement of any cluster C symptoms (i.e., persistent avoidance). The companying note states that the symptoms were more likely better accounted for by a psychotic disorder. The Veteran has numerous additional notations of a history of PTSD or positive screens for PTSD in VA treatment records. Social Security Administration (SSA) records note that the Veteran disability benefits were based on a primary diagnosis of schizophrenia, paranoid, or other psychotic disorders and a secondary diagnosis of back disorders, discogenic and degenerative. An explanation of determination dated in March 2011 also noted the Veteran had PTSD. Statements submitted by the Veteran as part of the SSA disability claim note hallucinations, hearing voices, nightmares, insomnia, and reacting violently to criticism. Associated with the SSA records are a December 2010 psychological evaluation done on referral by the Office of Disability Determination and a psychiatric review assessment dated in September 2010. Both diagnosed the Veteran with schizophrenia, paranoid type, recurrent major depressive disorder with severe psychotic features, and polysubstance abuse. In September 2017, the Veteran completed a VA psychiatric consult and was diagnosed with unspecified psychotic disorder, unspecified depressive disorder, unspecified trauma related disorder and cocaine and cannabis use disorders, both in sustained remission. The Veteran reported depression symptoms, irritability, anger, and sleep disturbance. He reported that he continues to have occasional nightmares, flashbacks, and hypervigilant behavior. The Veteran had symptoms of social isolation, irritability with significant difficulty managing his anger, strong history of physical assaults, insomnia, anhedonia, low motivation, fatigue, anxious thoughts about the future and past mistakes, depressed mood several days per week, intrusive thoughts of physical assault the with physiological arousal, hypervigilance, attempts to avoid thoughts or feelings associated with military assault, auditory hallucinations of voices that comment on his surroundings and that the Veteran would lose time, such as several hours passing without the Veteran’s knowledge. Also in September 2017, the Veteran had a VA examination, with examination report dated in October 2017. The examiner found the Veteran had PTSD, intermittent explosive disorder, recurrent moderate major depressive disorder with psychotic features, and stimulant use disorder (cocaine), in early remission. The examiner reviewed the substantial treatment history noted above. The examiner opined that an acquired psychiatric disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran had never been formally diagnosed, as opposed to provisionally, diagnosed with PTSD. Any prior PTSD diagnosis in the past based was solely on his self-reported symptoms. The examiner stated she would not comment on whether the assault happened, but the examiner noted there were no clear markers that could be identified in service medical records or military personnel files to verify a stressor. There were no behavioral-emotional sequelae specific or uniquely related to an assault. Conversely, the presence of documented behavioral problems during military service did not indicate a specific event took place. A person may act differently due to a variety of reasons unrelated to the incident in question, such as substance use, characterological traits or other psychiatric pathology, or a general disregard for authority. The examiner opined that although the Veteran reported being physically assaulted in the military, the Veteran had other factors that likely had more of an impact on his current mental state, including significant drug abuse, numerous legal charges with periods of incarceration, and unemployment. The examiner reported that drugs, such as cocaine, can mimic depressive and anxious symptoms or exacerbate already existing psychological problems. Additionally, extended drug abuse often creates psychosocial stressors that persist even after an individual becomes abstinent from mood-altering substances. The examiner reported that the Veteran had no history of mental health treatment until the mid-1990s, approximately fifteen years after military service. The Veteran had evaluated by outpatient PTSD clinics twice in the past in October 2010 and June 2014, but was refused admission into the program both times because he was not found to meet criteria for PTSD. The examiner stated, after view of the psychological treatment notes, that the alleged military assault had not been the focus of recent psychological treatment. The examiner opined that given a lack of evidence, the current psychological diagnoses were less likely than not (less than 50 percent probability) incurred in or caused by the alleged in-service assault or military service. PTSD was entered as a part of the Veteran’s medical history in VA treatment records after this examination. A May 2018 VA addendum opinion again noted that the Veteran reported being physically assaulted in the military, but that the Veteran had other factors that have likely had more of an impact on his current mental state, including significant drug abuse, numerous legal charges with periods of incarceration, and unemployment. The examiner stated that during the September 2017 VA examination, the Veteran met the criteria for multiple DSM-5 diagnoses, including PTSD, major depressive disorder with psychotic features, intermittent explosive disorder and stimulant use disorder (cocaine) in reported early remission. However, the diagnosis of PTSD was based solely on his report of symptoms. It was the opinion of the examiner that Veteran’s current psychological diagnoses were less likely than not (less than 50 percent probability) incurred in or caused by the alleged in-service assault or his military service. Based on the VA examinations, the most appropriate diagnoses are PTSD, major depressive disorder, and substance abuse disorder or disorders. The Board has considered the Veteran’s statements that he was assaulted in-service and that he developed PTSD as a result. The Veteran has been diagnosed with PTSD. The Veteran is competent to report when psychological symptoms started, as such would be lay observable. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, here, the Veteran is not credible in his reports. Service records do not indicate treatment for mental health issues in service, and he denied relevant issues at separation. He has reported during his Board hearing that he was diagnosed with mental health disability or disabilities in 1987 when imprisoned and the Veteran did not report symptoms starting in service. The examiner who provided the medical opinions reviewed the Veteran’s file, recited the Veteran’s medical history in the VA examination reports and provided conclusions based on sufficient facts and data. Therefore, these opinions are entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, while the Board has considered the Veteran’s lay statements, to the extent he argues continues symptoms since service, such statements lack credibility; they do not outweigh the probative medical opinion. As stated by the examiner, the alleged in-service assault is not the cause of the Veteran’s PTSD or other acquired psychiatric disorders. Instead, the VA examiner found the Veteran’s psychological diagnoses were caused by significant drug abuse, numerous legal charges with periods of incarceration, and unemployment. Additional treatment records note the Veteran psychosis, schizophrenia, and paranoid personality disorder with antisocial personality features, which have overlapping symptoms with PTSD. We also note that in regard to the claimed in-service assault, he received punishment. This reflects that he was the assaulter, not the person who was assaulted. Simply, the Veteran has had a variety of events in his life (imprisonment, personal difficulties, and drug and alcohol abuse), which post-date and are unrelated to service. The Veteran’s separation examination did not note any mental health issues and the Veteran reported first being diagnosed with some type of mental health disability in prison after service. He did not have characteristic manifestations of a psychiatric disorder during service or of a psychosis within one year of separation. Regardless of whether there is credible supporting evidence that an assault on him occurred in or around November 1980, there is no link by medical evidence between an in-service stressor and the current symptoms. The examiner found that PTSD and other psychological issues were due to much later events. Therefore, the provisions of 38 C.F.R. § 3.304(f)(5) regarding in-service assault, while considered, does not warrant entitlement to compensation for PTSD, as medical evidence does not establish a link between PTSD and an in-service stressor. Similarly, to the extent that there is a diagnosis of an unspecified stressor disorder, there is no credible evidence that the stressor happened in service. To the extent the Veteran was diagnosed with a personality disorder, the Board notes that personality disorders are not diseases or injuries within the meaning of the law. See 38 C.F.R. §§ 3.303, 4.9, 4.127. The claim for service connection for an acquired psychiatric disorder, to include PTSD, is denied. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel