Citation Nr: 18161099 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 10-16 175 DATE: December 28, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT But for alcohol abuse, a psychiatric disability was not present in service and a psychosis was not manifest to a compensable degree within one year of separation from active service. The most probative evidence of record indicates that but for alcohol use disorder, secondary substance induced mood disorder symptoms, and cannibis use disorder (disabilities for which compensation may not be paid), the Veteran does not currently have a psychiatric disability which is causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 105, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1985 to November 1995. This matter comes before the Board of Veterans’ Appeals (Board) from April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for PTSD and depression. In April 2017, the Board recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, and remanded the matter for additional evidentiary development. SERVICE CONNECTION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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 was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including a psychosis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017). An injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). 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 standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. At 54. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD Factual Background In pertinent part, the Veteran’s service treatment records (STRs) show that he was seen for treatment of alcohol abuse. These records are otherwise negative for complaints or findings of a psychiatric disability. At his September 1995 military separation medical examination, psychiatric evaluation was normal. In addition, the Veteran completed a report of medical history on which he denied having or ever having had nervous trouble of any sort, including depression or excessive worry, frequent trouble sleeping, loss of memory, and periods of unconsciousness. In pertinent part, the post-service record on appeal shows that in February 2003, the Veteran sought treatment for substance abuse. An initial psychosocial assessment showed that he had a history of drinking alcohol since the age of 11 and smoking marijuana since the age of 13. He indicated that he had been clean and sober prior to going to prison over one and one half years prior. He also reported participation in three previous substance abuse treatment programs, including while he was in the Navy and most recently in March 2000. The Veteran claimed to have served in Panama, Somalia and Desert Storm and that he “saw combat.” The diagnoses were alcohol dependence and history of treatment for depression. He thereafter participated in counseling and in October 2003, he was diagnosed as having adjustment disorder with depressed mood. In December 2003, his case was closed after he failed to report for further treatment. In December 2004, the Veteran sought treatment for symptoms of depression and was prescribed Remeron. Subsequent clinical records show continued treatment for symptoms of depression, including with Paxil. In March 2006, he reported that the Paxil was working well. In March 2007, a PTSD screen was positive. The “identified experience related to trauma” was listed as “Gulf War.” In April 2007, he endorsed anxiety and depression and claimed to be experiencing nightmares of the Gulf War. He was referred for evaluation. The provisional diagnosis was adjustment disorder with mixed features. In May 2007, the Veteran underwent a psychiatry assessment. The examiner indicated that the Veteran did not exhibit any symptoms of PTSD. The diagnostic formulations were anxiety and depression, not otherwise specified, rule out PTSD, and alcohol dependence in remission. In August 2007, the Veteran underwent psychological testing and was diagnosed as having depression not otherwise specified, PTSD “by testing,” alcohol abuse in remission, and antisocial traits. The examiner indicated that the diagnoses were hypotheses only as the report had been made based only on test results without the benefit of a clinical interview. Subsequent clinical records show treatment for multiple psychiatric complaints and diagnoses, including PTSD, alcohol intoxication, depression, mood disorder, alcohol abuse and cannibis abuse. In February 2008, the Veteran submitted a claim of service connection for PTSD. He reported that on January 27, 1989, a he was sitting in a helicopter on the deck of the U.S.S. Midway when a “C-2 hit the deck and crashed” into a nearby helicopter, trapping him in the wreckage. He indicated that he had had to live with that experience. He also indicated that on February 17, 1995, while participating in a man overboard drill on the U.S.S. McClosky, he witnessed a fellow shipmate die after he was decapitated by a loose “bull and tackle.” He indicated that he replayed the incident over and over in his head. In an April 2009 statement, the Veteran indicated that the C-2 crash had occurred in September 1988. He indicated that the date of the drill which had killed his shipmate had been in March 1995. He indicated that the shipmate had died from a broken neck from being hit by a bull and tackle which had broken free from a lifeboat. In a July 2009 statement, the Veteran recalled that the C-2 crash on the U.S.S. Midway had occurred on January 18, 1988, and that it had destroyed three helicopters. He indicated that the drill had occurred on March 15, 1995, while he was aboard the U.S.S. Midway participating in Operation Southern Watch in the Persian Gulf. The record reflects that the RO undertook substantial efforts to obtain evidence corroborating the Veteran’s reported stressors. In October 2017, the service department indicated that they had researched the 1995 command history and the March to April 1995 deck logs of the U.S.S. McClusky, but neither recorded any man overboard drills or fatal medical emergencies. The service department also indicated that they had researched the available U.S. Navy casualty information but determined that it did not record the fatal training incident described by the Veteran. Similarly, the service department provided the command history for the unit assigned to the U.S.S. Midway, but noted that there was no mention of a helicopter crash as reported by the Veteran. In November 2017, the Veteran was afforded a VA examination. The VA examiner reviewed the record and examined the Veteran in person. The Veteran reported a long history of alcohol and marijuana use which began prior to service and increased during service . He described an incident during service in which a C-2 crashed into 2 helicopters on the U.S.S. Midway and that he was able to escape from the wreckage. He indicated that the event scared the living crap out of him. He denied exposure to combat, although he reported that he got combat pay for Operation Southern Watch. The Veteran denied exposure to any other traumatic events in service, then stated “I take that back, there had been [a] sailor I’d seen break his neck,” stating that he “kind of forgot that.” After examining the Veteran and reviewing the record in detail, the examiner diagnosed the Veteran as having mild alcohol use disorder and a moderate cannabis use disorder. The examiner indicated that a diagnosis of PTSD was not appropriate. He explained that although the Veteran’s self report indicates that he met criterion A for a diagnosis of PTSD (stressor exposure), he did not report a sufficient number of symptoms to meet the remaining diagnostic criteria for PTSD or any other trauma-related disorder. The examiner also reviewed the record in detail and noted that the Veteran’s self-reports had been “highly fluid” with conflicting reports of combat exposure (i.e. earlier reporting combat in Somalia, Panama, Persian Gulf and denying any combat exposure history on current examination), a legal history beyond which the Veteran was willing to disclose to the examiner, and other variances in substance abuse patterns. He acknowledged the other diagnoses of PTSD in the record, but explained that it was likely that the treatment providers based those diagnoses on variable self-reports and were made in error. The examiner also noted that the Veteran’s PTSD diagnoses were noted to be “per psych testing” and were therefore questionable as there exists no true diagnostic test for PTSD. The examiner also noted that the Veteran’s alcohol and drug abuse was documented well prior to the episodes of in-service trauma he claimed to have had. In summary, based on the overall record, the examiner concluded that the most appropriate diagnosis was alcohol use disorder with secondary substance induced mood disorder symptoms at times. The examiner indicated that this condition was not the result of military service or secondary to a service-connected disability. He also indicated that in light of the record, the Veteran also likely suffered from mixed Cluster B personality traits (affective/relational instability, aggressivity, impulsivity, disregard to the rights of others/social norms, lack of empathy, use of deceit), though the examiner refrained from provision of a full personality disorder diagnosis. Finally, the examiner indicated that a diagnosis of cannibis use disorder was appropriate in light of the Veteran’s ongoing daily marijuana usage. He indicated that this condition was not due to the Veteran’s military service. Analysis After a review of the evidence the Board finds that the preponderance of the evidence is against the claim of service connection for a psychiatric disability, to include PTSD and depression. As set forth above, the Veteran’s service treatment records show that he was treated for alcohol abuse but contain no other indication that a psychiatric disability was present during his period of active duty. The post-service clinical evidence is similarly negative for any indication that the Veteran developed a psychosis within one year of service separation. With respect to the post-service diagnoses, the Board notes that the Veteran has been diagnosed as having alcohol and cannibis use disorder as well as secondary substance induced mood disorder symptoms. The Board finds the diagnoses provided by the November 2017 examiner to be most probative, as they were based on a review of the Veteran’s service treatment record, the entire post-service clinical record, and a clinical examination of the Veteran. The Board further notes that the examiner provided an explanation for his diagnostic impressions. Thus, the Board finds that these diagnoses outweigh the other clinical evidence of record. The Board has considered the notations of a possible personality disorder. As set forth above, service connection is granted for disability resulting from disease or injury incurred in the line of duty. 38 U.S.C. § 1110. Personality disorders, however, 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). There is no basis on which to award service connection for a personality disorder in this case. The post-service record on appeal, to include the November 2017 examination, shows that the Veteran was diagnosed as having alcohol and cannibis use disorder as well as secondary substance induced mood disorder symptoms. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, however, prohibits payment of compensation for a disability that is a result of a Veteran’s own alcohol or drug abuse. See also 38 U.S.C. § 105(a) (2012); 38 C.F.R. §§ 3.1(m), 3.301(d) (providing that an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs). In this case, there is no basis upon which to award service connection for drug and alcohol dependence. Finally, the Board has considered the other clinical evidence of record which contains notations of various psychiatric disabilities or symptoms, including depression, anxiety, and adjustment disorder. As set forth above, however, the Board finds that the most probative evidence reflects that the Veteran does not currently have these disabilities. Rather, his symptoms have been attributed to alcohol and cannibis use disorder with secondary substance induced mood disorder symptoms, disabilities for which compensation may not be paid. In any event, the service treatment records contain no indication that any psychiatric disability other than alcohol abuse (to include depression, anxiety, and adjustment disorder) was present during his period of active duty nor is there any indication that any current psychiatric disability such as anxiety or depression is causally related to his active service. While the Veteran argues that he has a psychiatric disability which is related to an in-service injury or disease, he is not competent to provide a diagnosis or a nexus opinion in this case. The issue of the proper diagnosis and etiology of the Veteran’s current psychiatric disability is medically complex, requiring specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In summary, the Board finds that a psychiatric disability was not present during the Veteran’s active service, a psychosis was not manifest to a compensable degree within one year of separation, and the record contains no indication that any current psychiatric disability, other than alcohol and cannibis use disorder, is causally related to the Veteran’s active service. As the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disability, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107;Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel