Citation Nr: 18148679 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 11-12 106 DATE: November 8, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. REMANDED The issue of entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The record does not contain competent medical evidence establishing a diagnosis of PTSD based on an in-service traumatic event or stressor. 2. An acquired psychiatric disorder, to include PTSD, was not documented during service, nor was a psychosis shown within one year of separation from service, and the weight of the competent evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 2. The criteria for establishing service connection for an acquired psychiatric disorder, other than PTSD, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to March 1985. In November 2015 and April 2017, the Board remanded the appeal for additional development. Service Connection 1. Entitlement to service connection for PTSD 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disorder manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as psychosis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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), citing Gilbert, 1 Vet. App. at 54. Claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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). If a stressor claimed by a Veteran is related to a Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that a 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 a Veteran’s service, a Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). When the evidence does not establish that a Veteran is a combat Veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). The Veteran contends that he developed PTSD due to his experience participating in the military response to a suicide bombing of a Marine Corps barracks in Beirut in 1983. The Board notes that the Veteran’s in-service stressor has been verified. The service treatment records contain no complaint, history or findings consistent with a psychiatric disorder, and on separation from service in March 1985, he was psychiatrically evaluated as normal. After service, VA treatment records dated from 2010 record diagnoses of adjustment disorder with mixed anxiety and depressed mood, as well as dysthymic disorder. A November 2011 letter from a counseling specialist who was treating the Veteran for mental health issues indicated that the Veteran appeared to have signs and symptoms consistent with a diagnosis of PTSD, although the counseling specialist reported he could not render an actual diagnosis in this regard, and suggested the Veteran undergo VA examination. The Veteran underwent a VA examination in September 2010. At that time, the examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD based on his in-service experience. The examiner acknowledged the Veteran’s verified in service-stressor, but found that that Criterion A for a diagnosis of PTSD was not met as the Veteran denied experiencing intense fear, horror or helplessness associated with the stressor. Additionally, when discussing re-experiencing, he showed loosening in his thought process and began discussing other current situational stressors that were causing him to experience a decrease in mood and emotional distress, and did not appear to be describing re-experiencing symptoms related to military events. In addition, he denied avoidance of internal or external stimuli associated with those experiences. Psychometric evidence overall was not consistent with the diagnosis of PTSD. The examiner diagnosed cannabis dependence and schizotypal personality traits, associated with underemployment, limited financial resources and lack of social support. The examiner opined that it was less likely as not that the Veteran’s cannabis dependence and psychotic symptoms were related to his military experiences including fear of hostile military or terroristic activity. In a subsequent addendum opinion, dated December 2011, a VA psychologist reiterated the findings of the September 2010 VA examiner and concurred with the diagnoses of cannabis dependence as well as schizotypal personality traits, which did not appear to be secondary to service, but rather related to more recent situational stressors. The psychologist also questioned whether symptoms could be substance induced. On VA examination in December 2015, the examiner verified the Veteran’s military stressor, which met Criterion A for PTSD. However, the Veteran did not endorse any symptoms of PTSD. Following a review of the claims file and an examination of the Veteran, the examiner determined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner noted that testing suggested deliberate exaggeration and potential feigning of mental health symptoms. The examiner found, based on a review of the treatment records which documented a history of daily cannabis use and schizotypal personality traits, that the Veteran met the criteria for a diagnosis of cannabis use disorder. In a June 2016 VA addendum opinion, the same VA examiner concluded that, other than cannabis use disorder, the Veteran did not meet the criteria for a diagnosis of any other psychiatric condition, and that the Veteran’s cannabis use disorder was unrelated to service or his verified in-service stressor. However, as indicated in the Board’s prior remands, the evidence of record, particularly VA treatment records in December 2010 and January 2011, recorded diagnoses of dysthymic disorder and adjustment disorder with mixed anxiety and depressed mood. Accordingly, a new VA examination and opinion report was obtained. On VA examination in January 2018, following a review of the claims file and an evaluation of the Veteran, the VA examiner found that the Veteran did not meet the DSM-5 or DSM-IV criteria for a diagnosis of PTSD, because there were no findings, signs and/or symptoms to support a diagnosis. In addition, the examiner noted that the medical evidence failed to document a diagnosis of PTSD, and August 2016 PTSD and depression screenings were negative. The examiner noted that treatment notes were primarily focused on financial and employment concerns, and contained diagnoses of cannabis dependence, schizotypal personality traits, and dysthymic disorder. The VA examiner opined that these did not meet DSM-5 (or DSM-IV) criteria for any mental disorder at present, other than cannabis use disorder, which preceded service and was unrelated to any aspect of military service. Concerning the diagnoses of dysthymic disorder, and adjustment disorder in the treatment records, these appeared to have resolved, as the Veteran denied any related symptoms on examination. In any event, to the extent that these diagnoses were present during the pendency of the appeal, these were less likely than not due to service as they were diagnosed decades after service discharge, and were unrelated to any aspect of the Veteran’s military service. At the outset, the Board points out that the evidence does not support a finding that the Veteran meets the criteria for a DSM-5 or DSM-IV diagnosis of PTSD. Following an examination of the Veteran in January 2018, the examiner concluded that despite the Veteran’s verified stressor, the Veteran did not meet the DSM-5 or DSM-IV criteria for diagnosis of PTSD. The opinion is consistent with prior VA examination findings in September 2010, December 2011, December 2015, and June 2016, which were based on a review of the Veteran’s service and medical history, as well as his current findings, and are thus afforded of great probative value in this regard. Moreover, the clinicians who have treated and examined the Veteran have not diagnosed PTSD that meets the DSM criteria. The Board has considered the Veteran’s self-diagnosis of PTSD and while he is competent to report his mental health symptoms, he is not competent to diagnose his condition. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus). See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In a claim of service connection for PTSD, there is a specific legal requirement for a diagnosis, which requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 – i.e., a diagnosis that conforms to the DSM. 38 C.F.R. § 3.304. Thus, the diagnosis of PTSD is a complex medical question and the Veteran has not been shown to possess the requisite expertise or knowledge to diagnose it. In light of the absence of a diagnosis of PTSD in accordance with DSM, service connection for PTSD is denied. 38 C.F.R. § 3.304 (f). With regard to service connection for a psychiatric disorder, other than PTSD, it is acknowledged that no psychiatric disability was diagnosed during service. As noted, treatment records after 2010 document psychiatric treatment and diagnoses, to include adjustment disorder with mixed anxiety and depressed mood, as well as dysthymic disorder. Said disabilities were diagnosed after the Veteran’s separation from service. The determinative question in this case involves causation. On the question of medical causation, the medical evidence does not support the claim. 38 C.F.R. § 3.303(d). Specifically, the VA examiner in January 2018 opined that the diagnoses of dysthymic disorder and adjustment disorder noted during the pendency of the appeal were less likely than not due to service as they were diagnosed decades after service discharge, and were unrelated to any aspect of the Veteran’s military service. Additionally, none of the Veteran’s medical providers have related a psychiatric disorder to his verified in-service stressor or to any other aspect of his military service. The Veteran’s symptoms of mental health disorders have been associated with situational stressors, to include the Veteran’s financial problems and employment issues. A diagnosis of a psychiatric disorder was first recorded in 2010, approximately 25 years after discharge from service, and there is no indication that psychosis had its onset during or within one year of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board finds persuasive the opinion from the January 2018 VA examiner who found that the evidence did not support a conclusion that the Veteran incurred an acquired psychiatric disorder in service. The examiner’s findings were based on a review of the evidence, including the service treatment records and examination reports, which did not substantiate a finding that an acquired psychiatric disorder was incurred in service. The examiner considered the complete record and the Veteran’s contentions, and provided an explanation as to why the evidence does not support his contentions. Indeed, the opinion is consistent with other evidence of record, as is the examiner’s reasoning. As such, the opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Veteran contends that his psychiatric disorder is etiologically related to service. However, unlike disabilities that may be observable as to both their incurrence and their cause, the cause of a psychiatric disability is not readily apparent to lay observation. Indeed, psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Moreover, even if credible and competent, the general lay assertions are outweighed by the specific and reasoned conclusions of the VA examiner who objectively found that his disorders are not a result of service. Nieves-Rodriguez, 22 Vet. App. at 304. While the record shows an assessment of schizotypal personality traits, regarding any diagnosed personality disorder, the Board points out that personality disorders are not diseases or injuries within the meaning of applicable legislation providing VA compensation benefits. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Beno v. Principi, 3 Vet. App. 439 (1992) (holding that personality disorders are developmental in nature, and, therefore, not entitled to service connection); see also 61 Fed. Reg. 52,695-98 (Oct. 8, 1996) (regulatory history providing that personality disorders are not diseases or injuries for VA compensation purposes). Although service connection may be granted for disability due to a superimposed disease or injury, none are shown in this case. With regard to the medical evidence indicating cannabis dependence, the law is clear that progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was the result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). Direct service connection may be granted only when a disability was incurred in the line of duty, and not the result of a Veteran’s own willful misconduct, or for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). There is no indication that the substance abuse is secondary to, or as a symptom of a service-connected disorder. See Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). The Veteran’s diagnosed cannabis dependence cannot be service-connected. Based on the foregoing, the Board finds the preponderance of the probative and persuasive evidence against a finding that acquired psychiatric disability, to include PTSD, arose in service or is etiologically related to service or any incidents therein. Moreover, a psychosis was not shown within one year following discharge from service, and the provisions regarding continuity are not for application. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b). In sum, as the Board finds that there is no competent medical evidence of a diagnosis of PTSD that meets the DSM requirements, and given the weight of the objective, persuasive evidence against a finding that any other psychiatric disorder is causally related to service, the Board finds that the preponderance of the evidence is against the claim that any psychiatric disorder was incurred in or in any way related to service. As such the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of entitlement to service connection for left ear hearing loss is remanded. The Veteran claims entitlement to service connection for left ear hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The service treatment records reflect that on his April 1982 enlistment examination, audiometric testing of the left ear showed an auditory threshold of 45. Nevertheless, the enlistment examination report noted the ears and hearing as normal. At the time of the separation examination in March 1985, the left ear threshold was measured at 40 decibels. This examination report also noted the ears and hearing as normal. Notwithstanding the medical findings at enlistment and separation from service, it appears that left ear hearing loss disability preexisted service. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in the disability during such service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this case, each of the VA examiners to address the Veteran’s left ear hearing loss have stated that the Veteran’s hearing loss existed prior to military service; however, none of the VA examiners has expressed an opinion in terms consistent with the standards for establishing a pre-existing disability, or rebutting the presumption of soundness. Most recently, in opining that the currently diagnosed left ear hearing loss preexisted service and was not aggravated by service, the December 2017 VA examiner did not use the necessary evidentiary standard here (clear and unmistakable evidence). The report is detailed and explained. But the correct standard must be addressed. As such, the Board finds that an addendum VA opinion is necessary as there remains some question as to the etiology of the claimed left ear hearing loss. The matter is REMANDED for the following action: Request an addendum opinion from the December 2017 VA examiner. (If the examiner is no longer available, forward the claims file to an appropriate VA medical professional.) The entire claims file, and a copy of this remand, must be provided to and reviewed by the examiner. After reviewing the record, the examiner should answer the following questions: (a) Did left ear hearing loss disability clearly and unmistakably exist prior to service? (b) If so, is it clear and unmistakable that left ear hearing loss disability was not aggravated by service? The “at least as likely as not” standard should not be addressed here. Please explain your opinion in detail. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tatiana Azizi-Barcelo, Counsel