Citation Nr: 18152086 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 10-36 450A DATE: November 20, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability to include adjustment disorder with depressed mood, major depressive disorder (MDD), and posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The probative evidence of record demonstrates by a preponderance of the evidence that the Veteran’s claimed psychiatric disability did not have an in service onset, and is not etiologically related to active military service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability to include adjustment disorder with depressed mood, MDD, and PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.384 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service during the Vietnam era, in the United States Army from June 1965 until July 1967. The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at an October 2016 hearing. A transcript of that hearing is of record. The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 1. Entitlement to service connection for an acquired psychiatric disability to include adjustment disorder with depressed mood, MDD, and PTSD The Veteran appeals the denial of service connection for an acquired psychiatric disorder to include adjustment disorder with depressed mood, MDD, and PTSD. The Veteran alleges his psychiatric disability occurred as a result of bullying, harassment, and an aggressive environment including, adverse effects on employment, attempted sexual assault while in military prison, and physical violence while in the military. The Veteran also alleged that while in Germany during drill, he witnessed a soldier being crushed by a tank. See March 2005, March 2009, November 2011, and May 2012 VA Clinical Records; see also March 2011 Veteran’s Correspondence. Secondarily, the Veteran contends that his psychiatric disability is caused or aggravated by his service-connected bilateral foot disabilities (hallux valgus with degenerative arthritis, hammertoes) and the limitations they impose, prompting further depression. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include psychoses, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For VA purposes, the term psychosis means any of the following disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance- or medication-induced psychotic disorder. 38 C.F.R. § 3.384. For psychoses, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. VA compensation may not be paid for personality disorder, as it is specifically excluded as a disease or injury within the meaning of applicable legislation providing VA compensation benefits. See 38 C.F.R. §§ 3.303(c), 4.9. If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statement from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of evidence of the stressor include but not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that the evidence from sources other than the Veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). The Veteran’s alleged instances of hazing, getting into fights, and harassment are all covered under 38 C.F.R. § 3.304(f)(5) (2017); see also Patton v. West, 12 Vet. App. 272 (1999). Therefore, pursuant to the March 2017 remand, the AOJ notified the Veteran of his right to submit additional evidence to corroborate any alleged stressor in a July 2017 letter. By way of background, the Veteran was deemed psychologically “normal” at his June 1965 induction and May 1967 separation examinations. In-service, the Veteran was psychiatrically examined and assessed with a passive aggressive personality, but found no evidence of any other psychiatric disease or mental illness. Additionally, on his separation report of medical history the Veteran denied any instance of depression, excessive worry, nervous trouble of any sort, or issues sleeping. In the Veteran’s initial application for compensation he alleged his depression began in 1966, but noted he had not sought treatment until 2001 at his local VA Medical Center (VAMC). The evidentiary record reflects possible psychiatric diagnoses of adjustment disorder with depressed mood, MDD, and PTSD. Notably, the Veteran’s diagnosis of adjustment disorder with depressed mood (resolving) secondary to multiple life stressors including retirement and divorce was provided by a VA clinician in March 2005. Subsequently in July 2005 the Veteran tested negative for a mood disorder as well as PTSD. Intermittently throughout the record the Veteran would receive positive and negative screenings for depression, including a July 2010 diagnosis of MDD, recurrent moderate, and a PTSD diagnosis in March of 2009. The diagnosing clinician noted that the Veteran suffered non-combat related PTSD with symptoms including relationship problems, anxiety, depression, and nightmares. The March 2009 clinical record noted the Criteria A trauma for his PTSD as a combination between witnessing a soldier become crushed, and eventually killed while in Germany, and also traumatically being harassed, threatened, and assaulted due to his height. Regarding the Veteran’s alleged stressor, the Board notes the inconsistency in report as the Veteran testified at his October 2016 hearing that he did not actually see a soldier being crushed, but just heard about it through other soldiers at his post. In 2010, the Veteran sought treatment, reporting depressed and/or irritated mood secondary to a legal dispute with his niece. During this visit, the Veteran was diagnosed with PTSD and depression by history. The April 2015 VA treatment records reflect that there was “no mental health condition requiring further intervention.” The Veteran was described as stable, non-depressed, without the presence of suicidal or homicidal ideations, or hallucinations. The same report accompanied the Veteran’s January 2017 VA treatment record, as no mental health conditions were found then either. To the contrary, at the July 2017 depression screening, the clinician suggested the Veteran be evaluated by mental health to determine whether a condition was present. In connection with this claim the Veteran underwent VA examination in September 2017, to which the examiner determined that at present, the Veteran does not meet the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) diagnostic criteria for any mental disorder. Specifically, the examiner noted that the Veteran had not been seen by the mental health clinic since he transferred care in 2014, nor was he taking any psychiatric medications. The examiner noted that the Veteran’s mood was described as depressed during a July 2017 primary care visit, which prompted a mental health consultation; however, the examiner noted that Veteran himself questioned why a mental health referral was necessary at that point. The examiner thoroughly reviewed the Veteran’s medical history, particularly noting the existence of his previous diagnosis of adjustment disorder, and prescribed medication for a ninety-day period, that once concluded required no further treatment as the Veteran was coping well with a positive outlook on the future. The Board sought an advisory medical opinion in May 2018 to clarify whether the Veteran had a current diagnosis as the record reflected that the Veteran lacked a current psychological disability despite being previously diagnosed with adjustment disorder, MDD, and PTSD at various periods since service. The July 2018 opinion notes that the only substantiated diagnosis of record was for an adjustment disorder with depression and anxiety subsequent to the Veteran retiring and going through a divorce in 2005. The diagnosis is supported, but not from military service. The diagnoses of MDD is not substantiated in any of the record, and the Veteran’s previous diagnosis of PTSD described by the Veteran was later retracted as not having happened as initially presented by him. The treatment the Veteran received for PTSD and anxiety were in a group setting and without medication for any symptoms related to military service. The examiner reiterated, that by the Veteran’s own account and review of the record that no mental health diagnosis was present during military service. Moreover, the examiner stated that the Veteran did not manifest any mental health symptoms at all until he presented for an evaluation for depression and anxiety in 2005. At that point a diagnosis of adjustment disorder with mixed presentation of depression and anxiety was made. The symptoms associated with the aforementioned condition were documented as related to the Veteran’s retirement divorce, and was treated with a short-term supply of Prozac, which the Veteran was directed to taper off the medication as the period progressed. The Veteran reported stopping the medication earlier than the ninety-day period, as he felt fine and no longer depressed. In addressing the Veteran’s contention that his psychiatric disability is proximately due to or aggravated by his service-connected foot conditions and/or diabetes. The examiner stated that there is no evidence to support that assertion; throughout the Veteran’s treatment and office appointments, there was no documentation of depression or anxiety. The only significant notion was that the Veteran lacked compliance in the management of his diabetes. Additionally, there was no evidence to support any increase in any alleged mental health symptoms from ongoing medical conditions or treatment described regularly in the records. Thus, the examiner concluded that there is no evidence of MDD or PTSD which is substantiated by the record, and the only substantiated diagnosis of adjustment disorder was directly associated with the Veteran’s personal issues back in 2005. The Board finds that the probative evidence of record demonstrates by a preponderance of the evidence that the Veteran’s claimed psychiatric disability did not have an in-service onset, and is not etiologically related to active military service or a service-connected disability. The Veteran’s service treatment records reflect a diagnosis of passive aggressive personality which is not subject to service connection. O’Bryan v. McDonald, 771 F.3d 1376, 1380-81 (personality disorder is an exclusion in § 3.303(c) and are excluded as noncompensable); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (“A personality disorder, therefore, is not the type of disease-or injury-related defect to which the presumption of soundness can apply.”). Notably, a psychiatric examination during service found no psychiatric disorder to be present. The Board places significant probative weight to this evidence as it included an evaluation as to the Veteran’s actual psychiatric status at that time. The Board next observes that the Veteran currently recalls the onset of depression in 1966. However, at his separation in 1967, the Veteran specifically denied depression, excessive worry, nervous trouble of any sort, or issues sleeping. Thus, the Veteran has provided inconsistent testimony. The Board places greater probative weight to the Veteran’s statements in 1967 as they bear the indicia of reliability as being made in the context of obtaining appropriate medical evaluation upon discharge, and being contemporaneous in time to the time period in question. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Thus, the most credible lay and medical evidence at discharge weighs against a finding of the onset of a chronic acquired psychiatric disorder in service. The post-service record reflects diagnoses such as adjustment disorder with depressed mood, MDD, and PTSD in the clinic setting. The PTSD diagnosis is based, in part, on the Veteran’s recollection of witnessing a soldier become crushed, and eventually killed while in Germany, and also traumatically being harassed, threatened, and assaulted due to his height. However, the Veteran later testified that he did not actually witness the soldier injury but had heard about it. The clinic records also contain assessments of no current psychiatric disorder. To reconcile these inconsistencies and diagnoses, the Board sought an advisory medical opinion based upon review of the entire evidentiary record – which was lacking in the clinic setting assessments. This examiner found that the only substantiated diagnosis of record was for an adjustment disorder with depression and anxiety subsequent to the Veteran retiring and going through a divorce in 2005, and that the diagnoses of MDD and PTSD were not supported based upon the entirety of the record. The examiner found no mental disorder being present in service based upon the lay and medical evidence which the Board finds is consistent with the factual record as found by the Board above. This examiner attributed the adjustment disorder to post service events, and also found that the Veteran’s psychiatric disability was not shown to be proximately due to or aggravated by his service-connected foot conditions and/or diabetes. The Board accords the 2018 advisory medical opinion great probative weight as it is based upon actual review of the service treatment records – which include a psychiatric assessment at the time – as well as the historical record of treatment post service. This examiner relied in part on the lay and medical evidence reflected in the service treatment records which, as discussed above, the Board finds to be more credible than the Veteran’s current recollections of the onset of depression in service. On the other hand, the clinic evaluations of MDD and PTSD are not based upon review of service treatment records which are not consistent with the Veteran’s current recollections, and relied in part on the Veteran’s description of a PTSD stressor which he later testified was different in character than described to the VA clinician. The probative value of these diagnoses are greatly outweighed by the 2018 medical advisory opinion which reviewed these assessments in light of a more complete and accurate record review. The Veteran’s recollections as to the onset of psychiatric symptoms are capable of lay observation. However, as discussed above, the Board finds his most credible recollections are those reported in service. He is not competent to self-diagnose an acquired psychiatric disorder as he is not shown to possess the requisite training and expertise. See Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence … is competent and sufficient to identify). As there is no evidence that the Veteran manifests a psychosis, his allegations of an inservice onset alone are insufficient to establish the onset of an acquired psychiatric disorder under the continuity provisions of 38 C.F.R. § 3.303(b) or the presumptive provisions applicable to chronic diseases manifesting within the first postservice year under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331 (2013). (continued on next page) In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, entitlement to service connection for an acquired psychiatric disability is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel