Citation Nr: 1808211 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-35 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include, post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1986 to July 1986 and from November 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana that denied service connection. This appeal has previously been before the Board, most recently in July 2017, when it was remanded for further development and a VA examination. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT The weight of the evidence is against a finding that the Veteran has an acquired psychiatric disorder that began during his military service, was caused by his service, or is otherwise etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran was scheduled for a Board hearing in April 2013. However, in written correspondence dated April 26, 2013, the Veteran requested cancellation of his hearing and stated he did not want to reschedule. As such, the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). The Veteran was afforded two VA examinations in connection with his claim. Upon review of the evidence, the Board finds that the examination reports indicate that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2017); Barr, 21 Vet. App. 303 (2007). Neither the Veteran, nor his representative objected to the adequacy of the most recent examination. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Service Connection The Veteran filed a claim for service connection for PTSD in January 2010. The Veteran's claim for service connection was denied in a July 2010 rating decision that found the Veteran's medical records did not indicate the existence of PTSD. The Veteran timely appealed asserting that since February 2010 he has been treated for PTSD at the Indianapolis VA Medical Center (VAMC). 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.A. §§ 1110, 1131. Service connection can be established by evidence that shows "(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-the so-called "nexus" requirement." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; or based on a continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed, or during, or contemporary to the pendency of the claim. McClain, 21 Vet. App. at 319. In this case, there is evidence that the Veteran was diagnosed at various times with depression and anxiety disorder, although his most recent VA examination found no mental health diagnosis was warranted pursuant to the DSM. Nevertheless, though the conditions may have resolved, the Board finds the Veteran's diagnoses, symptoms, and treatment for such conditions meet the requirement of a current disability for VA purposes. The Board also notes that the medical evidence of record shows no indication that the Veteran has PTSD. Rather both VA examinations and treatment records explicitly indicate that he does not meet the required diagnostic criteria pursuant to the DSM. In so doing, it was acknowledged that the Veteran had reported service related incidents where he was exposed to deceased service members while in the Persian Gulf War as well as to exposures that might constitute fear of hostile military or terrorist activity. As such, it is accepted that the Veteran experienced events that are sufficient to meet the requirement of an in-service incurrence. As such, the remaining determination is whether a causal relationship exists between the Veteran's current disability and in-service incurrence. The Veteran's entrance and exit examinations are silent for any complaints of or treatment for any mental illness. Additionally, the Veteran's service treatment records do not indicate the presence of psychiatric symptoms. The mental health treatment of record begins in 2010. In January 2010, the Veteran was psychiatrically assessed. He was diagnosed with polysubstance dependence and major depressive disorder, chronic, recurrent. He was noted to be sober from drugs and alcohol for the past eleven days and to be experiencing depression on and off for the last few weeks. He denied suicidal or homicidal ideations, as well as visual and auditory hallucinations. His affect was desponded and his mood sad. The Veteran reported frustration related to unemployment and homelessness. He also reported lack of interest, feelings of guilt, and sleep difficulties. He was prescribed Zoloft. Later in January 2010, the Veteran was given a psychological assessment. He was noted to have "a constellation of problems in his life (all directly related to his continued use of cocaine, cannabis, and alcohol)." The Veteran was afforded a VA examination in July 2010 at which he was assessed with polysubstance dependence. The examiner noted that the Veteran has psychosis and major depressive disorder among diagnoses in past medical history. The Veteran was noted to take anti-psychotics and anti-depressants. He reported low energy, low motivation, and voices telling him "there is nothing he can do about [his current situation]." The voices also told him "he needed to make a change in his life - to do some 'crazy things' in order to pay his child support." The Veteran reported a history of hearing voices that first started "after the war." At the time of examination, he heard voices once a week that sounded like a whisper. The evaluator noted that the etiology of the Veteran's psychotic symptoms (voices) was unclear. The examiner also noted that it was unclear as "to what extent longstanding substance use or other factors played a role in the development of these symptoms." Based on reported symptoms, the examiner assigned diagnoses of mood disorder and psychotic disorder nos and stated he was unable to speculate whether such symptoms were related to military service. An August 2012 psychiatry note appears in the record. The Veteran was noted to have depression nos. He reported remission of alcohol and cocaine dependence. The Veteran noted the appointment was because he had to file for PTSD again and had some financial and somatic concerns. Specifically, the Veteran complained of arm pain, the need to see a neurologist, and owing money for taxes. The clinician noted the Veteran's presentation was "without endorsement of symptoms for PTSD, rather somatic and self created financial stressors." An April 2013 psychiatry note appears in the record. The Veteran is noted to have a diagnosis of cocaine dependence, polysubstance dependence, and depression, nos. The Veteran reported being sober from drugs since January and staying away from drug-use triggers. The Veteran was assessed with a euthymic mood and fluid affect. His thought process was relevant, logical and sequential. The clinician noted discussion of building social supports to prevent relapse. The clinician also noted explaining to the Veteran that "adequate support for the diagnosis [PTSD] has not been attained." A November 2014 nursing note included a depression screening. The Veteran scored a 6, which was noted to be positive screen for depression. The Veteran was noted to express depressive feelings about his life, financial stress, denial of VA benefits, and being shot in front of his home as a victim of automobile theft. The Veteran declined to speak with a psychologist. The Veteran was afforded a VA examination in October 2017. The Veteran was assessed as having no current mental disorder diagnosis. The examiner noted that the Veteran did not have a mental disorder that conformed to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria. He was noted to take no psychotropic medications, but was last prescribed Zoloft in October 2012. The Veteran was noted to participate in mental health treatment since 2010, with his most recent encounter in April 2013. At that time, he was noted to have relapsed on cocaine and was assigned diagnoses of depressive disorder nos, anxiety disorder nos, and cocaine and cannabis abuse. The examiner found it noteworthy that the Veteran's treatment history lacked any diagnosis of a psychotic disorder, treatment for psychosis, and opined that this was due to previous psychosis occurring secondary to substance abuse. The medical evidence of record does not indicate a causal link between the Veteran's psychiatric disability and his military service. The most significant mental health treatment the Veteran received was in 2010. Throughout 2010, the Veteran regularly attended a mental health group that addressed chemical dependency and a psychiatry therapy group that addressed mental health symptoms. On several occasions, the Veteran is noted to experience financial stress from job loss, homelessness, and child support arrearages. Further, the medical evidence of record indicates fluctuating periods of sobriety prior to, and throughout the appeal period. The Veteran's mental health treatment is largely correlated with his substance use and financial stressors. Notably, neither the Veteran's regular clinicians, nor the July 2010 VA examination indicated that the Veteran's psychiatric condition was linked to his military service. Additionally, the October 2017 VA examiner noted that the Veteran's previous psychosis occurred secondary to substance abuse. The medical evidence does not show that the Veteran's major depressive disorder or anxiety disorder are causally linked to his military service. Similarly, the evidence of record does not support service connection based on a continuity of symptomatology. There is no medical indication that the Veteran had a psychiatric disability in service, upon separation from service, or within one year of his separation. The Veteran's service entrance and separation examinations indicated no mental health problems. Further, there is insufficient medical evidence to demonstrate a pattern of psychiatric symptoms since separation from service. The Veteran's medical records and attempts at service connection indicate treatment gaps and acute, rather than a continuity of symptomatology. As the medical evidence of record, including treatment records and the VA examination reports, do not demonstrate the required nexus, the Board finds that service connection on a direct basis is not warranted. The record also does not support service connection on a secondary basis. The record is absent for any indication that the Veteran's service-connected disabilities, bilateral patellofemoral syndrome, caused or aggravated his current psychiatric disability. As previously stated, the Veteran's depression and anxiety disorders have been associated with his drug use and financial and life stressors rather than an in-service incurrence or a service-connected disability. The Board acknowledges the Veteran's assertions that he experienced stressful combat situations during his military service. Additionally, during the pendency of his claim, the Veteran reported symptoms of depression, stress, and angry mood. The Board notes that these symptoms were often noted in the Veteran's treatment records, however, they were noted in relation to financial and current life stressors, rather than service-related events. The Board finds that as a lay person, the Veteran is competent to report what comes to him through his senses, yet he lacks the medical training and expertise to provide a medical opinion as to the etiology of his major depressive disorder or anxiety disorder. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's conclusions about the etiology of his disability are afforded little weight, as the issue of causation is a medical determination outside the realm of common knowledge of a lay person. Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence weighs against a claim for service connection for an acquired psychiatric disability and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs