Citation Nr: 1806782 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-01 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for cognitive/psychiatric symptoms, to include as due to service in the Southwest Asia theater of operations during the Persian Gulf War. 2. Entitlement to service connection for headaches, to include as due to service in the Southwest Asia theater of operations during the Persian Gulf War. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to service in the Southwest Asia theater of operations during the Persian Gulf War. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1990 to May 1991 and in the U.S. Navy from February 1993 to September 1994. The Veteran has additional service in the U.S. Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the January 2007 substantive appeal (via VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ). The hearing was scheduled for April 7, 2015, and a March 2015 notice letter informed the Veteran of the time, place, and location of the hearing. The Veteran failed to appear for the scheduled hearing and did not provide good cause for his absence or otherwise request the hearing be postponed or rescheduled. Accordingly, the Board will proceed as if the request for the hearing has been withdrawn. 38 C.F.R. § 20.704(d) (2017). In June 2015 and June 2017, the Board remanded the appeal for further development. The issue of entitlement to service connection for headaches and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has current diagnoses of multiple substance abuse disorders, antisocial personality disorder, and persistent depressive disorder with anxious distress. 2. The record does not contain a diagnosis of PTSD that conforms with the requirements of 38 C.F.R. § 4.125(a). 3. The Veteran's cognitive/psychiatric symptoms are not an undiagnosed illness or a medically unexplained chronic multisymptom illness. CONCLUSION OF LAW The criteria for service connection for cognitive/psychiatric symptoms have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017). 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 Veteran seeks service connection for cognitive/psychiatric symptoms. For the reasons that follow, the Board finds that service connection is not warranted. The threshold determination in a claim for service connection is whether the Veteran has a current disability. In this appeal, the question is not whether the Veteran has a current disability, but rather what the appropriate diagnosis actually is. A review of the record shows that the Veteran has been diagnosed with posttraumatic stress disorder (PTSD), alcohol abuse, cannabis abuse, nicotine dependence, opioid dependence, panic disorder, depressive disorder, mood disorder, nos; sedative hypnotic anxiolytic use disorder, depressive disorder, substance-induced mood disorder, dysthymic disorder, insomnia, possible somatoform disorder, and cognitive disorder, nos. Throughout the Veteran's treatment history, examiners have generally used groupings of the above diagnoses to describe the same or similar cognitive/psychological manifestations. In June 2015, the Board remanded the appeal to, inter alia; obtain a VA medical opinion to identify the Veteran's current psychiatric disorders. The Veteran underwent a VA examination in August 2016. The examiner diagnosed opiate use disorder, cannabis use disorder, sedative hypnotic anxiolytic use disorder, and persistent depressive disorder with anxious distress. An additional VA medical opinion was provided in June 2017. The VA psychologist acknowledged the multiple substance abuse disorders and also diagnosed antisocial personality disorder. The VA psychologist commented that the Veteran has a long history of substance abuse without a significant period of sustained abstinence and, as a result, it is impossible to diagnosis a cognitive, mood, anxiety, or trauma-related disorder. All of the Veteran's diagnoses aside from the substance abuse are confounded because they are well known to be induced by substance abuse, to include his problems with memory impairment. The Board finds the August 2016 and June 2017 VA medical opinions to be the most probative evidence of record concerning the appropriate diagnoses for the Veteran's condition because the examiners were able to review the entire claims file and, thereby, his history as a whole. The Board finds especially informative the June 2017 VA examiner's statement indicating that all of the Veteran's other diagnoses, to include those relating to anxiety, depression, and memory impairment, are unreliable because such symptomatology is known to be induced by substance abuse. Indeed, while the Veteran's VA treatment records often showed that diagnoses of substance abuse were provided in tandem with other diagnoses, the examiners never discussed how the diagnoses could be interrelated. Given the foregoing, the Board finds the Veteran has multiple current diagnoses of substance abuse disorders, antisocial personality disorder, and persistent depressive disorder with anxious distress. The Board notes this final diagnosis is not inconsistent with the Board's prior finding because the August 2016 examiner who provided the diagnosis indicated that it was, in part, substance-induced. The Board's prior discussion did not specifically discuss the prior diagnosis of PTSD. The Board acknowledges that the rationale of the August 2017 VA examiner is also likely applicable to the prior diagnoses of PTSD; however, the Board also finds that the record does not contain a diagnosis that complies with 38 C.F.R. § 4.125. The disability of "PTSD" is noted countless times throughout the Veteran's VA treatment records because his condition has manifested in PTSD-related symptomology, he has been prescribed medications to treatment that symptomology, and because he has undergone PTSD-related therapy. Each treatment record containing a purported diagnosis of the condition, however, does not show how the findings on examination conform with the requirements of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV) or the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5). See, e.g., VA treatment records (10/17/2003, 1/20/2006, 8/8/2007, 10/31/2007, and 2/28/2008). The August 2016 VA examiner considered whether the Veteran met the DSM-5 criterion for a diagnosis of PTSD and found that he did not. Accordingly, the record does not contain a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) and, therefore, service connection for PTSD is not warranted. The Board notes that the DSM-5 criterion are more lenient than the DSM-IV criterion based on relaxation of Criterion A; therefore, the Veteran was not prejudiced by a lack of consideration of the DSM-IV criterion by the August 2016 examiner. Service connection for antisocial personality disorder is not warranted because it is not considered a disease or disability within VA's regulatory framework. 38 C.F.R. § 3.303(c). As noted above, the Veteran has a diagnosis of persistent depressive disorder with anxious distress. The August 2016 examiner explained that the Veteran's symptomology could be explained by his chronic substance abuse, and some depressive symptoms were also attributable to relationship turmoil, physical pain, loss of sense of purpose, and so on. The Board notes the examiner did state "his experiences in Desert Storm appear to have no more impact on his current psychosocial functioning than what would be expected of anyone deployed to a hostile military zone at a young age." When the examination report is read as a whole, the Board finds that this statement is not inconsistent with the examiner's ultimate conclusion. See Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Rather, it was a colloquial way of expressing that the Persian Gulf War and the Veteran's experiences therein were discussed, but even when prompted to do so, the Veteran did not attribute his symptomology to that cause. Weighing in favor of a nexus between this diagnosis and the Veteran's active service are lay statements provided by the Veteran, his father, and girlfriend regarding recurrent symptomology from deployment to the Persian Gulf and/or a general change in behavior. The girlfriend's statements are not competent because they are not based on personal knowledge. She did not indicate she knew or observed the Veteran near-in-time to his active service; rather, her assertions are based on what the Veteran, his father, and cousin allegedly told her. To the contrary, the Veteran and his father are competent to relate a recurrent psychiatric symptomatology from deployment to the Persian Gulf and/or a general change in behavior. With respect to the Veteran and his father's statements regarding recurrent symptoms since return from the Persian Gulf and/or a general change in character- such testimony is not credible due inconsistent statements, internal inconsistency, and lack of consistency with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Reports of Medical History from the Veteran's period of active service with the U.S. Navy, which occurred after deployment to the Persian Gulf, show the Veteran marked "no" to symptoms of frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. These notations represent contemporaneous evidence from the Veteran himself that weigh against their more recent assertions. Moreover, all clinical evaluations from this period of service were unremarkable for related symptomology as well. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (generally distinguishing the concept of credibility from probative value and holding that the absence of contemporaneous medical evidence cannot be used to impugn credibility but can be weighed against lay evidence once competency and credibility are established). The Board finds the Veteran's affirmative and contemporaneous statements, the absence of contemporaneous medical records, and the August 2016 VA medical opinion, considered together, outweigh the Veteran and his father's assertions regarding a continued symptomology and/or general change in behavior. Moreover, the Veteran has not been forthcoming about his substance abuse. The substance abuse, itself, does not connote untruthfulness; however, in discussing it with medical providers he was regularly evasive or untruthful, to include as it pertains to the nature, frequency, and onset of use. For example, at times he related that his alcohol use began during service but later admitted to alcohol and cannabis use as a minor. At other times he reported that he had "hardly any" illicit substance use, whereas treatment records from both the same year and year prior revealed current problems such as alcohol abuse, cannabis abuse, opioid abuse, and obtaining and taking non-prescribed controlled drugs such as Xanax. A number of VA examiners did not find him to be a reliable historian in discussing his substance abuse. Such weighs against his general propensity to be truthful. Furthermore, even if the lay statements regarding recurrent symptomology since return from the Persian Gulf and/or a general change in character were found credible, to the extent that they were proffered in support of establishing causal nexus, they are outweighed by the competent and persuasive VA medical opinions which found no causal relationship to service. The sum of the evidence does not weigh in favor of a nexus between persistent depressive disorder with anxious distress and the Veteran's service in the Persian Gulf War. The Veteran has not otherwise asserted that it relates to his second period of service with the U.S. Navy, and the record does not suggest such a connection. Service connection may not be established on a presumptive basis as the Veteran was not diagnosed with a chronic disease, such as a psychosis, within a year of service discharge. 38 C.F.R. §§ 3.307, 3.309. In sum, there is no doubt to be resolved; a nexus has not been established. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for persistent depressive disorder with anxious distress is not warranted. The law precludes service connection for the Veteran's substance abuse disorders on a direct basis. 38 C.F.R. § 3.301. They are eligible for consideration of service connection based on a secondary theory of entitlement. 38 C.F.R. § 3.310. At present, the Veteran is only service connected for irritable bowel syndrome. The evidence does not indicate the Veteran's substance abuse disorders may be secondary to his irritable bowel syndrome. Thus, service connection for the Veteran's substance abuse disorders is not warranted, to include based on a secondary theory of entitlement. Lastly, presumptive service connection may be granted for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disease. 38 C.F.R. § 3.317. The Veteran's service does make him a Persian Gulf veteran within the meaning of the regulatory framework. The term "qualifying chronic disease" generally refers to undiagnosed illnesses or medically unexplained chronic multisymptom illnesses (MUCMI). Here, the Veteran's cognitive and psychiatric problems have been diagnosed; thus, they are not an undiagnosed illness. Moreover, they have a clear and specific etiology attributable, generally, to the Veteran's substance abuse. See August 2017 VA medical opinion. Accordingly, they are not considered MUCMI, either. Thus, service connection is not warranted on a presumptive basis as related to the Persian Gulf War. ORDER Service connection for cognitive/psychiatric symptoms is not warranted. REMAND The Veteran seeks service connection for headaches and GERD. Both issues were remanded by the Board in June 2017 to, inter alia, obtain a VA medical opinion addressing whether the Veteran's symptomatology is at least as likely as not consistent with a MUCMI, as defined by 38 C.F.R. § 3.317(a)(2)(B)(ii). Two addendum medical opinions were provided later the same month; one for headaches and one for GERD. In both opinions, the examiner stated that the disease had a clear and specific etiology and was not a MUCMI. The explanation that followed, however, was merely a recitation of the reasoning for why service connection for each disability was not warranted on a direct basis. The examiner did not provide a cogent rationale for his conclusion. Accordingly, remand is required for an addendum opinion. 38 C.F.R. § 4.2. Prior to moving forward, the Board will make a finding of fact concerning certain lay evidence provided by the Veteran. This determination could potentially aid the examiner in forming his or her opinion. See Jones v. Shinseki, 23 Vet. App. 382, 392 (2010) (The Board is to resolve a credibility issue on remand to establish a factual foundation for an examiner's opinion.). The Veteran asserts that there has been a continuity of symptomatology since service for headaches and GERD. The Veteran is competent to relate readily observable symptomatology; however, the Board does not find him to be a credible witness with regard to such testimony for these two diagnoses. The Board finds the Veteran's credibility and reliability as a historian is impeached due to inconsistent statements. Caluza, 7 Vet. App. at 511. First, the Veteran has not been forthcoming about his substance abuse. The substance abuse, itself, does not connote untruthfulness; however, in discussing it with medical providers he was regularly evasive or untruthful, to include as it pertains to the nature, frequency, and onset of use. For example, at times he related that his alcohol use began during service but later admitted to alcohol and cannabis use as a minor. At other times he reported that he had "hardly any" illicit substance use, whereas treatment records from both the same year and year prior revealed current problems such as alcohol abuse, cannabis abuse, opioid abuse, and obtaining and taking non-prescribed controlled drugs such as Xanax. A number of VA examiners did not find him to be a reliable historian in discussing his substance abuse. This does weigh against his general propensity to be truthful and, his reliability as a historian. Second, the Veteran has repeatedly made inconsistent statements regarding the date of onset of his headaches and GERD. Regarding headaches, in December 2000 he reported that headaches had been present for the past month; in September 2003, he reported that headaches had been present for the past 7-8 years; in October and December 2003, he reported that headaches had been present for the prior 2 years; and in March 2004, he reported that headaches had been present since 1998. Regarding GERD, in March 2004, he reported gastrointestinal problems for the past several years; in April 2004, he reported that gastrointestinal problems had existed since returning to civilian life 12 years ago; and later that same month, he reported experiencing crampy abdominal pain associated with meals and nighttime after going to bed for approximately 4-5 years. Thus, with both headaches and GERD, the Veteran has shown a history of dating the onset of these conditions to different points in time. Considering the Veteran's inconsistent statements, together, the Board finds his lay statements concerning continued headache and GERD symptoms from service are not credible. As a result, the Board ascribes no probative value to these pieces of evidence. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain an addendum VA medical opinion concerning the pathophysiology and etiology of the Veteran's headaches and GERD. If possible, the opinion should be authored by the examiner physician who authored an opinion on the same matter on June 16, 2017. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with authoring the addendum opinion. THE EXAMINER MUST REVIEW THIS REMAND. THE BOARD HAS MADE A FINDING OF FACT CONCERNING CERTAIN LAY EVIDENCE OF RECORD RELATING TO HEADACHES AND GERD. The examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's symptomology is consistent with a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" is defined as an illness(es) without conclusive pathophysiology or etiology characterized by overlapping symptoms and signs with features such as fatigue, pain, disability out of proportion to physical findings, and/or inconsistent demonstration of laboratory abnormalities. This question necessarily requires the examiner to discuss the pathophysiology or etiology of the conditions. Medical treatment records, diagnostic testing, and lay evidence should be considered where appropriate. For GERD, this includes a June 2016 endoscopy performed at a non-VA facility. A complete rationale must be provided for all opinions expressed. 3. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs