Citation Nr: 18150106 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-05 586 DATE: November 14, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar II disorder, and substance abuse disorders is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s current diagnoses for acquired psychiatric disorders, to include posttraumatic stress disorder (PTSD), bipolar II disorder, and substance abuse disorders, were incurred in service or are otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar II disorder, and substance abuse disorders have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to April 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In November 2014, April 2017, and April 2018, different Veterans Law Judges remanded these issues; the case has since been assigned to the undersigned. The Veteran initially filed a claim for PTSD and the Board, in the November 2014 remand, recharacterized the claim to include all acquired psychiatric diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar II disorder, and substance abuse disorders The Veteran contends that he has acquired psychiatric disorders, to include PTSD, bipolar II disorder, and substance abuse disorders, that were incurred in, caused by, or aggravated by his time in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including psychoses, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (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); see also Cohen v. Brown, 10 Vet. App. 128 (1997). As an initial matter, the Board finds that the Veteran has a current diagnosis for PTSD, bipolar II disorder, and substance abuse disorders. A Veteran satisfies the current disability requirement if he has such disability at any time during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that there is some discrepancy regarding the Veteran’s current psychiatric diagnoses. Over the course of years of mental health treatment and examination, the Veteran’s depression has been diagnosed by various providers as bipolar II disorder, major depression disorder, and dysthymia. The July 2018 VA examination noted this discrepancy and found bipolar II disorder to be the most appropriate classification for his depression. Over the years, the Veteran also received various diagnoses and notations regarding anxiety. However, the 2015 VA examination and the 2018 VA examination, both determined anxiety to be a symptom of PTSD and not a separate diagnosis. Based on the VA examinations, the most appropriate diagnoses for the Veteran are PTSD, bipolar II disorder, and substance abuse disorders. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). In this case, the Veteran asserts that he developed PTSD due to being assigned to a “conflict” in North Africa and discussed having panic attacks from the deck and anti-aircraft guns while aboard the U.S.S. Chilton. See March 2010 statement. The November 2014 and April 2017 Board remands focused primarily on verifying these reported stressors. It is now confirmed that the Veteran’s Navy ship, the U.S.S. Chilton, did in fact go to Libya while the Veteran was stationed aboard it, and during that time underwent combined landing exercises with British Forces. See June 2017 National Archives and Records Administration (NARA) letter. It has also now been confirmed that the ship engaged in “gunnery exercises” while in the Mediterranean while the Veteran was aboard it. See June 2017 NARA letter. While these are not “conflict” or combat, the Board considers the Veteran’s stressors verified. The Veteran has also proposed “the rigid ways of the Navy, his difficulty with authority, and his fears of going to Vietnam” as stressors for his PTSD and other acquired psychiatric disorders. Considering the Veteran has current diagnoses for psychiatric disabilities and his stressors have been verified by NARA, the remaining question for the board is whether these current disabilities began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran did not report receiving any mental health services prior to or during his military service. The Veteran’s service treatment records (STRs) do not contain evidence showing treatment for, or diagnosis of PTSD or other psychiatric disorders. The Veteran’s enlistment and discharge medical examinations do not reflect any psychological disability. See October 1965 and April 1967 STRs. As discussed below, the record does indicate that the Veteran may have had psychological issues prior to his military service. In January 2018, a VA examiner opined that it would be speculation to opine as to whether any mental health symptoms or disorders clearly and unmistakably existed prior to the Veteran’s military service without review of substantial additional evidence, such as pre-military evaluations. See January 2018 VA medical opinion. The Veteran reported that he first sought mental health services for depression and anxiety in 1991, following a severe car accident in 1990 and related job loss. In this regard, in light of the fact that the Veteran served on active duty from October 1965 to April 1967, this fact only provides evidence against the claim, indicating the car accident caused a major problem in the Veteran’s life, years after service. Butler Hospital records document treatment for major depression from 1992 to 1998. In an August 1998 discharge summary from Butler Hospital, he identified a stressful work environment, a dysfunctional family, and financial concerns as stressors for his major depression diagnosis, providing more evidence against this claim. The Veteran received outpatient psychiatric evaluations and treatments from the Oklahoma City VA Medical Center (VAMC) in 2001. During these interactions, he cited his car accident, job loss, and the imprisonment of his daughter for a murder conviction as causes of his depression, providing yet more evidence against this claim. In January 2002, the Veteran received a mental status exam for social security purposes and received a diagnosis of major depressive disorder and anxiety disorder. During 2001 and 2002 social security examinations and in the related social security submissions, the Veteran stated that his depression and related anxiety began in 1991 following his car accident and job loss. The Veteran has had multiple admissions to VAMCs for mental health treatment and detoxification. He was admitted to the Providence VAMC 2002, 2003, 2007, and 2010. He was admitted to Bedford VAMC in 2010. Following a suicide attempt, the Veteran was admitted to Memorial Hospital and received a mental health exam in September of 2007. The Veteran was diagnosed with anxiety, depression, and PTSD. The Veteran related multiple stressors to these conditions, including his motor vehicle accident, corresponding job loss, daughter’s incarceration, and divorce. He also related a tour of duty in Vietnam and childhood trauma to his PTSD. In this regard, the Board must note the fact that the Veteran never served in Vietnam. In a mental status exam conducted at the Bedford VAMC in February 2010, the Veteran was diagnosed with PTSD related to his childhood and depression as secondary to his PTSD. In a mental health examination conducted at Bedford VAMC, the Veteran was diagnosed with PTSD related to his childhood, bipolar disorder, and substance abuse. The Veteran has been regularly receiving mental health treatment from Providence VAMC since 2002. Treatment reports and assessments generally associate his PTSD with his childhood. See, e.g., mental health examinations conducted at Providence VAMC from November 2012 to December 2014. The Board notes that some post-service treatment records include the Veteran’s assertion that his PTSD and other mental health problems are related to his military service. However, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion. LeShore v. Brown, 8 Vet. App. 406 (1995). The Veteran underwent a VA examination in September 2015. The examiner diagnosed PTSD and major depression (sedative, hypnotic, or anxiolytic use disorder and cannabis disorder were both described as in remission). The examiner opined that his PTSD is more likely than not a residual of his childhood experiences, providing evidence against the claim in that it indicates that while the Veteran has PTSD, the PTSD is not related to service. As discussed in the examination, the Veteran experienced prolonged abuse, neglect, and involvement in violent, gang-related activities, including being stabbed and shot, during his childhood. The examiner further opined that it was not at least as likely as not that the Veteran’s military stressors of “difficulty with authority, the rigid ways of the Navy, and fears of going to Vietnam” significantly exacerbated his already existing psychiatric symptoms. The examiner stated that the Veterans depression (diagnosed as major depression) was related to his PTSD. The examiner also addressed the Veterans reported anxiety as a symptom of his PTSD. In the April 2018 remand, the Board found the September 2015 VA examination to be inadequate because it did not address the stressor incidents verified by the June 2017 NARA letters. The Veteran underwent another VA examination in July 2018 which included these verified stressors. The examiner diagnosed PTSD; bipolar II disorder; sedative, hypnotic, or anxiolytic use; and alcohol use disorder (the Veteran’s substance abuse disorders had reportedly relapsed recently). The examiner opined that the Veteran’s PTSD and depression (diagnosed as bipolar II disorder) were less likely than not caused or aggravated by his military service. The examiner opined that his PTSD is due to prolonged childhood abuse/neglect and involvement in violent, gang-related activities as a child. The examiner noted that, during his interview, the Veteran discounted the landing exercises in Libya and gunnery exercises in the Mediterranean as contributing to his PTSD and denied feeling traumatized by these incidents. The examiner opined that the Veterans depression (diagnosed as bipolar II disorder) is secondary to his prolonged PTSD, chronic pain from his 1991 car accident, and the consequences of severe substance abuse. The examiner noted that, starting in 2010, the Veteran had sustained sobriety from drugs and alcohol until a recent relapse in June 2018. The examiner who provided the medical opinions in the July 2018 VA examination reviewed the Veteran’s file, recited the Veteran’s medical history in the report, and provided conclusions based on sufficient facts and data. This examiner also provided a detailed analysis of the Veterans stressors, including the gunnery and landing exercises absent from the September 2015 VA examination. Therefore, these opinions are entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes that his psychiatric diagnoses are etiologically related to his active military service, he is not competent to provide that opinion in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As to PTSD, the Board finds that the July 2018 VA examiner's opinion is the most probative evidence of record because it is supported by an examination of the Veteran, a comprehensive assessment of the reported stressors, a review of the record on appeal, and sufficient explanation. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Therefore, the Board finds that the most probative evidence shows that the Veteran’s PTSD is not etiologically related to his service. Accordingly, the Board concludes that, while the Veteran has a current diagnosis of PTSD, and evidence shows that his reported stressors occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of PTSD began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As to bipolar II disorder, the evidence of record does not establish that the Veteran began to manifest an acquired psychiatric disorder to a compensable degree within one year after separation of service or continuous symptomology since separation from service. VA and private treatment records show that the Veteran was not diagnosed with any psychiatric disorder until 1991, decades after his separation from service. The Veteran’s service separation examination evaluated the Veteran as psychologically normal upon separation from service, providing some evidence against this claim. Further, the July 2018 VA examiner opined that the Veteran’s depression (diagnosed as bipolar II disorder) is not at least as likely as not related to an in-service injury, event, or disease, including his reported stressors. Rather, the examiner found that his depression was likely secondary to his PTSD, chronic pain, and the consequences of severe substance abuse. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board concludes that, while the Veteran has a current diagnosis of bipolar II disorder, and evidence shows that his reported stressors occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bipolar II disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As to the substance abuse disorders, the controlling precedential authority makes clear that direct service connection may not be granted for a disability that arises from a Veteran’s abuse of alcohol or drugs. Allen v. Principi, 237 F.3d. 1368 (Fed. Cir. 2001); see also 38 U.S.C. § 1131 and 38 C.F.R. § 3.301. Alternatively, the Veteran has claimed that he abused substances to self-medicate his PTSD and depression. Therefore, his substance abuse disorders could be treated as secondary service connections. However, without a finding that PTSD and bipolar II disorder are service connected, a secondary service connection for the substance abuse disorders is not possible. In reaching its decision, the Board acknowledges that the Veteran is competent to report symptoms and history of treatment. However, he is not, as a lay person, competent to make medical conclusions such as diagnose himself with a psychiatric disorder or determine the etiology of such disorder. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In contrast, the opinions of the July 2018 VA medical examiner, a psychologist, are competent. Moreover, the Board finds the opinions of the July 2018 VA medical examiner, who conducted an in-person interview and reached conclusions based on the Veteran’s entire medical history, to be the most probative evidence of record as to the nature and etiology of the Veteran’s claimed psychiatric disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the expert’s knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions and observations are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for an acquired psychiatric disorder, to include PTSD, bipolar II disorder, and substance abuse disorders. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Disability evaluations are determined by comparing the Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In this case, the Veteran does not have any service-connected disabilities. For this reason, he does not meet the percentage rating standards for TDIU at 38 C.F.R. § 4.16(a), and no consideration to such benefits are available under 38 C.F.R. § 4.16(b). As there is no service-connected disability, there is no legal basis upon which to consider the claim for a TDIU. (Continued on the next page)   Accordingly, the claim is without legal merit, and is therefore denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that where the law is dispositive, the claim must be denied due to a lack of legal merit). John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. E. VanValkenburg, Associate Counsel