Citation Nr: 18152418
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 11-07 564
DATE:	November 21, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) is denied.
FINDING OF FACT
The Veteran does not have an acquired psychiatric disability causally related to, or aggravated by, active service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from October 1965 to October 1966.  
This matter comes before the Board of Veterans’ Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana.  Jurisdiction was subsequently transferred to the Milwaukee, Wisconsin RO.   
This matter was most recently before the Board in June 2017 when the Board denied the Veteran’s claim.  The Veteran appealed the Board’s denial to the Court of Appeals of Veterans Claim (hereinafter Court).  In a March 2018 Order, the Court vacated the Board’s decision and remanded the issue for further action pursuant to a Joint Motion for Remand (JMR).  The JMR was required for the Board to address whether the Veteran had a diagnosis of an acquired psychiatric disorder at any time during the pendency of his claim.  
As discussed in the June 2017 decision, a prior denial of entitlement to service connection for PTSD has not been appealed; it is excluded from the issue because it was not listed by the Veteran in his January 2010 Notice of Disagreement. 
Although the Veteran initially requested a Board hearing, in April 2016 correspondence, that request was withdrawn.  
In October 2018, the Veteran’s attorneys submitted additional evidence (i.e. a clinical opinion by Dr. D. T.) with a waiver of RO consideration of the evidence. 
Entitlement to service connection for an acquired psychiatric disability
Legal Criteria
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (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. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
Analysis
Additional reference to the Veteran’s psychiatric disorder is presented in evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disorder that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. 
The Veteran contends that he has an acquired psychiatric disability causally related to active service.  The Board finds, for the reasons noted below, that the preponderance of the evidence is against the claim.  
The Board acknowledges the positive nexus opinions; however, they are based on an omission of pertinent history and/or an inaccurate history of the events; for this reason, the Board will outline the specific in-service events as supported by the records contemporaneous to service, or supported by records closer in time to service than statements made decades later. 
Initially, the Board notes that the Veteran has reported that prior to service, he was a victim of physical discipline and abuse by his parents, raped repeatedly in junior high school and high school by other school students, and was expelled from school his junior year for truancy. These allegations were presumed accurate by some clinicians and the Board will not find otherwise for purposes of this decision. 
The Veteran entered active service in October 1965.  His Report of Medical History for enlistment purposes reflects that he denied ever having had depression or excessive worry.
In March 1966, the Veteran was assigned to his unit at Fort Hood, Texas.  He was reported to be unhappy with his duties in the Earthmoving Platoon, was often on sick call, and did not associate well with his peers.  Per his request, he was allowed to perform as a cook’s helper for approximately thirty days, and was then returned to his original assignment.  (The record indicates that he was found to have a disease in approximately May 1966 and was thus considered not able to continue working with food).  (See OSA Form 172 Discharge Review)
A July 7, 1966 service treatment record (STR) reflects that the Veteran reported that he was taken to the emergency room the prior night after having taken an overdose of Darvon because he had felt that “nobody cares” and that “people were making fun of him”.  
An STR two days later (July 9, 1966) reflects that the Veteran felt that he can “make it” back with his unit if he has support.  A July 9, 1966 DA Form 8-275-2 reflects as follows with regard to the situation:
Emotional immaturity, manifested by acute drug Intoxications.  Darvon compound, self induced in suicidal gesture due to situationa[l] reaction; full awareness of what he was doing at the time A1: Ingested approx. 20 Darvon compound, approx. 2000 hrs, 7 Jul 66 in Co barracks, Ft. Hood, Texas.  LD: No, [Existed Prior to Service].
On July 11, 1966, the Veteran was referred to mental health by his company commander because of “repeated derelictions of military duty, “riding the sick book” and the recent overdose.  (The STRs reflect that the Veteran was seen on several occasions while in service for a variety of complaints to include congestion, back pain, chest pain, groin pain, headache, and upset stomach (e.g. four times in November 1965, twice in February 1966, once in March 1966, once in May 1966, six times in June 1966).) 
A July 26, 1966 STR reflects that the Veteran was seen for a follow-up, and reported that “still feels [he’s] being picked on”; it was indicated that the clinician would confer with the Veteran’s commander.   
On July 27, 1966, CPT D.H. assumed command of the Veteran’s company and was informed by the First Sergeant of problems with the Veteran.  Consistent with his policy of not cultivating a prejudicial opinion toward any man in the unit surrounding incidents that occurred prior to his arrival, and as an incentive, CPT D.H. allowed the Veteran to be promoted to E-3.  (See August 29, 1966 Certificate.)
The next day, on July 28, 1966, the Veteran indicated a dislike for his present job as a heavy equipment operator (MOS 62E20) and requested a job in the field of “body work”.  The Veteran did not give any reason for his job dissatisfaction other than he did not like what he was doing. After the discussion with his commander, the Veteran indicated that he would give his job another try and accept his tasks and duties as a mature individual. 
However, on July 29, 1966, CPT D.H. received a telephone call from a doctor in mental health who had met with the Veteran and opined that the Veteran was unsuitable for continued in service. CPT D. H. wrote that the doctor was “most agitated with [the Veteran’s] incorrigible attitude.”  Nevertheless, CPT D.H. approved two weeks leave in August to allow the Veteran to go home and “settle some ‘personal matters’”.   
An August 1, 1966 report of a July 29, 1966 psychiatric examination reflects that the Veteran has a history that is conducive to emotional difficulties, was always considered the black sheep of the family, that his parents want nothing to do with him, and that the only one he can go to when in trouble is his older sister but that she is not reliable for help at all times.  The examiner found as follows:
[The Veteran] relates in a dependent, childish manner as would a child who was being blamed for something which he was not guilty of.  There was definite, conscious attempt to win over the examiner’s sympathy, however, the [Veteran’s] hostility came out in his threats that he would kill himself or ‘do something horrible’ if something were not done for him.  There was a great tendency during all conversation for [the Veteran] to project blame for all his difficulties onto other people.  He demonstrated a marked lack of insight and an inability to make rational decisions.  However, no evidence of psychosis or organicity was found and there were no definite psychoneurotic trends.
A July 30, 1966 STR reflects that the Veteran reported that he was afraid that he might kill himself and wanted to see a psychiatrist; he was allowed ot return to his barracks provided he was watched by the person in Charge of Quarters. 
The Veteran was on leave beginning August 8, 1966.   On August 14, 1966, CPT D.H. received a telephone call from the Veteran’s mother stating that the Veteran had a “nervous breakdown”, and that he “has always been a problem” and “a constant source of anxiety” for the family.  
The Veteran’s leave expired on August 22, 1966.  On August 24, 1966, after speaking with the Veteran, CPT D.H. recommended that the Veteran be discharged as unsuitable for military service due to his immaturity.  
On August 25, 1966, and August 26, 1966, the Veteran threatened to murder CPT D. H. and a second lieutenant.  Four individuals heard the threats. On August 27, 1966, the Veteran was confined.  
On August 29, 1966, the Veteran complained of nervousness. 
A September 1, 1966 STR reflects that the Veteran requested a session with a psychiatrist. 
The Veteran was convicted on September 8, 1966 (approved September 13, 1966) of violation of Article 134 (threating murder); he was sentenced to a reduction in rank, five months confinement, and forfeiture of pay.  He was separated prior to completion of the confinement.
The Veteran’s October 1966 Report of Medical History for separation purposes reflects that the Veteran reported that he had, or had previously had, nervous trouble of any sort.  He denied having had depression.  The physician’s summary and elaboration of all pertinent data reflects that the Veteran had attempted suicide.  Upon medical examination, he was noted to have an immature personality.
The Veteran was discharged from service on October 17, 1966 for unsuitability- personality disorder.
The earliest clinical records of depression are not for several years after separation from service.  1974 and 1975 records reflect that the Veteran had a three-year history of cyclothymic personality.  The Veteran reported that he has been depressed in service after injuring his back and after his wife divorced him, and that since then he has had periods of well-being alternating with periods of deep depression; he was diagnosed with resolving reactive depression after treatment (e.g. December 1974 and January 1975 records).  In April 1976 he was given an impression of anxiety reaction.  A December 1979 record reflects that the Veteran took an overdose of medication after a fight with his wife.  The Veteran was diagnosed with passive aggressive, passive dependent personality, and reactive depression.
The claims file contains several examination reports as to whether the Veteran has an acquired psychiatric disability casually related to, or aggravated by, active service.  The Boards finds that the VA opinions noted below are more probative than those of the private clinicians.
An April 2012 VA examiner found that the Veteran had a borderline personality disorder and depressive disorder; the clinician opined that the Veteran’s current depressive disorder was not caused by his symptoms presented in service or by his personality disorder, but that the Veteran had mild transient and episodic problems with depression which have always been related to the Veteran’s current life stressors.  The examiner noted that the Veteran’s symptoms documented in the military records are not early manifestations of either an anxiety disorder or of his current depression but are clear manifestations of borderline personality disorder.  The examiner also noted that the Veteran’s symptoms of personality disorder include suicidal gesture, self-harm, transient affective instability with dysphoria and anxiety.  The examiner also noted that personality disorders do not change over the course of time into depressive disorders, and that the Veteran’s service records specifically document no evidence of psychosis or organicity found and that there were no definite psychoneurotic trends.  The examiner explained that such trends would include conditions of anxiety neurosis and depressive disorder and that the in-service examiner had been careful to document that the Veteran did not have neurosis and did not show neurotic trends.  Her conclusion states, “[t]he veteran displayed clear evidence of personality disorder shortly after entering the service. This is well documented in his medical record as he was discharged for “Immature Personality Disorder.” 
An August 2015 private opinion from Dr. R.C. reflects his opinion that the Veteran had depression which ebbed and flowed with his unstable mood, and that he had depression and anxiety dating back to June 1966 which continued to the present day. The examiner opined that these results suggested a dependent and submissive personality predisposition with moodiness of affect and swings of emotion. Dr. R.C. rendered a diagnosis of Major Depression, severe with multiple suicide attempts and unstable mood, and Generalized Anxiety Disorder. He also noted “rule out personality disorder not otherwise specified.”  The report does not reflect that the clinician considered the Veteran’s reports of pre-service physical abuse by his parents, and sexual abuse by others, which may be pertinent to the Veteran’s psychiatric state and was considered by other clinicians.  In addition, Dr. R.C. stated that the Veteran was promoted to the rank of E-3 “faster than normal” to support his clinical opinion that the Veteran was an exemplary soldier in early 1966; however, Dr. R.C.’s finding is not supported by the record, and does not consider that his commander allowed him to be promoted because the commander did not want to seem prejudiced to events that occurred prior to his taking command, and also that he hoped that the Veteran’s promotion would be an incentive to improved performance by the Veteran.   These inaccuracies and omissions regarding the Veteran’s relevant history decrease the probative value of the opinion.  
Another VA clinical opinion was obtained in October 2016.  The clinician found that the Veteran did not have depression in service, cited to the in-service records to support this finding, and concurred with the April 2012 VA examiner. 
The October 2016 VA examiner diagnosed the Veteran with Borderline Personality Disorder, which existed prior to service. The examiner concluded that the Veteran was not found to be experiencing a psychological diagnosis, including, but not limited to, Major Depressive Disorder.  Regarding the comment found within the August 1966 psychiatric evaluation which stated that there was “no evidence of psychosis or organicity was found and there were no definite psychoneurotic trends,” the 2016 examiner concluded that “psychoneurotic trends” refer to a non-psychotic disorder, or “neurosis,” such as a Depressive Disorder or an Anxiety Disorder. Since the Psychiatrist who conducted the August 1966 psychiatric evaluation in service documented that the Veteran did not have a neurosis and did not show any neurotic trends, the examiner opined that the Veteran did not carry a diagnosis of depression in service. Pertaining to the current examination, the examiner noted an absence of the following symptoms generally associated with Major Depressive Disorder: depressed mood, loss of interest, changes in appetite, insomnia or hypersomnia, psychomotor retardation or agitation, fatigue or loss of energy, feelings of worthlessness or inappropriate guilt, diminished ability to think or concentrate, suicidal ideation or thoughts of death. Furthermore, he noted the presence of symptoms associated with a pervasive pattern of instability of interpersonal relationships, and problems with self-image, affect, and marked impulsivity beginning by early adulthood.
The claims file also includes a September 2018 private opinion from Dr. D.T., who opined that the Veteran’s difficulties in the military apparently began in May or June 1965; the Board notes that the Veteran was not in service in May or June 1965.  Therefore, the Board will find that this is a typographical error by Dr. D.T. and that he intended to state that the Veteran’s difficulties began in May or June 1966.  
The Board finds that Dr. D.T.’s opinion lacks significant probative value because it is based on an inaccurate factual history. Dr. D.T. stated that the Veteran’s back injury, conviction of making threats, reduction from E3 to E1, and telephone call with his sister, impacted him in a negative way causing him to “give up and take a Darvon overdose.  However, the time-line cited by Dr. D.T. is incorrect.  The Veteran did not have a conviction and reduction in rank prior to an overdose attempt.  The Veteran overdosed on Darvon in July 1966, but did not make the threats against his command until six weeks later in August, and was not convicted and reduced in rank until September 1966.  
In addition, Dr. D.T. stated as follows:
[The Veteran] was assigned an MOS of heavy equipment operator, but he was informed that he was needed as a cook instead. Since this was not what was in his induction contract, he felt justified in complaining to the commanding officer.  He feels this may have been the start of his being identified as a complainer.  Still, he performed sufficiently well in his new MOS to be promoted from E1 to E3 in six months. 
However, this is an inaccurate recitation of the Veteran’s service.  The in-service records reflect that the Veteran did not want to be a heavy equipment operator and that he had requested another duty. (See CPT D.H.’s 1966 report.)  In addition, 1979 records with regard to changing his character of discharge also reflect that the Veteran was unhappy with his duties as a heavy equipment operator and he requested to be a cook in March 1966 and was allowed to do so for 30 days.  Thus, the record reflects that other than one month of duties as a cook (which he requested), the Veteran’s MOS was as a heavy equipment operator.  
Dr. D.T. also opined that the Veteran’s conviction in service was one of the factors which led to his “failure in the army”; however, his conviction was not until September 1966, more than six weeks after a mental health clinician had opined that the Veteran was not suitable for service.  (The finding that he was unsuitable was also prior to his threats.) 
In addition, the clinical opinions which allege that the Veteran’s promotion is evidence of his exemplary status or that he was doing well in service, are not totally accurate.  A reading of the claims file reflects that the Veteran was promoted, despite a “problematic situation” because his new commander did not want to cultivate a prejudicial opinion for incidents that occurred prior to his arrival as commander. Thus, the commander allowed the Veteran to be promoted despite his problematic history as an incentive to improve. 
[The Board also notes, as an aside, that service connection cannot be granted for a disability which is the result of willful misconduct.  Thus, even assuming arguendo, that Dr. D.T.’s factual history was accurate and that the Veteran’s conviction led to feelings of giving up, his conviction was the result of his willful misconduct.  The evidence does not support that his misconduct (i.e. criminal activity) was due to mental incapacitation so severe that it was tantamount to insanity or that the Veteran, who was competent to undergo trial, was found not guilty by reason of insanity.  The record reflects that although he had symptoms of a personality disorder, he was able to be tried and convicted of murder threats.] 
Given the factual inaccuracies in Dr. D.T.’s opinion, the probative value of the opinion is significantly reduced. 
The Board finds that the most probative medical evidence of record as to nexus are the two VA examination reports noted above.  They reflect an accurate history and conclude that the Veteran’s symptoms (to include anxiety and a suicide attempt) are manifestations of his personality disorder, and that any symptoms of depression or diagnosis of depression and anxiety are not causally related to, or aggravated by service. The opinions are based on a careful review of the evidence, to include the treatment history and in-service records, and are supported by adequate rationale.  
The evidence does not support a finding of chronic depression since service.  The STRs are negative for a diagnosis of depression, the Veteran denied depression on separation, there are not clinical records within a year of service noting depression, and the records noting mental health complaints reflect depression based on then current stressors or no depression (see e.g. 1974, 1975, 1979 records noted above and October 1996 record noting that the Veteran complained of being depressed for three to four months) and are against a finding of chronic depression since service. Further, the 2012 VA examiner found the Veteran only had mild, transient symptoms of depression.  Any opinion based on chronic continuous depression since service is inconsistent with the contemporaneous medical records and lacks probative value. 
The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to an acquired psychiatric disability.  Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of acquired psychiatric disabilities and personality disorders.  
In sum, the probative evidence reflects that the Veteran’s symptoms in service were attributable to a personality disorder, and that any diagnosis of an acquired psychiatric disability (to include depression and anxiety) during the pendency of his claim is less likely as not causally related to, or aggravated by, active service.  
 
As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 
 
 
M. C. GRAHAM
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Wishard