Citation Nr: 1808236 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-12 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to June 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In December 2016, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a new VA examination. The Board notes that the requested VA examination was obtained in January 2017 and has been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's acquired psychiatric disorder is not etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA provided the Veteran with a 38 U.S.C. § 5103(a)-compliant notices in May 2009 and December 2012. In September 2012, the Board remanded this case and instructed the AOJ to obtain a VA examination to determine the nature and etiology of the diagnosed acquired psychiatric disorder. The examiner was instructed to consider the Veteran's complete medical history. The record shows that the requested VA examination was obtained in January 2013. However, in a June 2015 Decision, the Board found that the AOJ did not comply with the September 2012 Remand directives. Specifically, the Board found that the January 2013 VA examination did not address the Veteran's complete medical history including a June 1996 PTSD diagnosis; thus, the examiner failed to consider the Veteran's complete medical history and the case was again remanded to obtain another medical opinion in compliance with the Remand directives. Thereafter, addendum VA medical opinions were obtained in August 2015 and March 2016. The August 2015 addendum noted the 1996 diagnosis for PTSD and the examiner opined that the current diagnosis for depressive disorder was a progression of the previously diagnosed PTSD. The March 2016 addendum simply stated that the rationale was "that it is a progression of the Veteran's previous diagnosed PTSD." However, the Board noted that the VA examiner failed to provide an etiological opinion or rationale as to whether the previous diagnosis for PTSD or depressive disorder was related to service. Specifically, the Board noted that the stated rationale was simply a restatement of the conclusion reached. Therefore, the Board again remanded the matter and requested the AOJ to obtain a VA examination that addressed the etiology of the Veteran's diagnosed psychiatric disorders. A new VA examination was obtained in January 2017. The examiner concluded that the Veteran did not have a current psychiatric disorder that conformed to either DSM-IV or DSM-V criteria. Accordingly, the examiner opined it was "less likely than not" that any claimed acquired psychiatric disorder was related to service. For reasons cited below, the Board finds the January 2017 VA examination report adequate to adjudicate the issue on appeal. Accordingly, the Board finds that the duty to assist has been satisfied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric Disorder The Veteran asserts that his acquired psychiatric disorder was caused by active service. Specifically, the Veteran asserts that his acquired psychiatric disorder resulted from being wrongfully imprisoned for six months during active duty service without the benefit of representation or court martial proceedings and from being forced out of service. After a review of the evidence of record, the Board concludes that service connection for an acquired psychiatric disorder is not warranted. 1. Factual Background The Veteran's service personnel records reflect that he was punished, although not imprisoned, on four separate occasions between September 1974 and February 1975. The offenses noted included disobedience of a lawful order to report to a drug abuse course and signing an official record which was known to be false with intent to deceive. Thereafter, the Veteran's personnel records reflect that he was imprisoned from March 1975 until he was recommended for administrative discharge in June 1975. It appears that the Veteran's in-service imprisonment resulted, in part, from a May 1975 Marine Corps Criminal Investigation Report concluding that the Veteran committed unlawful entry and larceny in March 1975. The report reflects that the Veteran was questioned and requested to be represented by counsel, however, there is no record concerning further investigation or court martial proceedings stemming from this report. In June 1975 the Veteran signed a Recommendation for Administrative Discharge, indicating that he consulted with counsel and accepted the recommendation without desire to have his case referred to an Administrative Discharge Board. In June 1975, the Veteran received an administrative discharge under honorable conditions for unfitness due to frequent involvement of a discreditable nature with military authorities. A review of the Veteran's service treatment records (STRs) are absent for any complaints or treatment for a psychiatric disorder. Post-service records show the Veteran requested a change to his reenlistment code and that request was denied in July 1979 by Headquarters United States Marine Corps. The record also shows that following service the Veteran made several requests for correction of his service record alleging error and injustice. In letters dated July 2001, March 2009, April 2009 and May 2011, the Board for Correction of Naval Records denied the Veteran's applications. An April 1991 VA medical record shows the Veteran reported abusing drugs and alcohol, including marijuana, at age 17. He further reported that his tour of duty during active duty service did not consist of overseas service. A September 1991 VA mental status examination in connection with substance abuse treatment shows the Veteran was diagnosed with alcohol and cocaine dependency and a personality disorder. The physician noted the Veteran was a product of a dysfunctional family. The Veteran reported feeling depressed, anxious and lonely with low self-esteem due to abuse problems. Social Security Administrative (SSA) records show that in June 1996 the Veteran reported a history of a psychiatric disease and stated he could not go to work as a result. A physician diagnosed the Veteran with a "psychiatric disease" and referred the Veteran for a psychiatric evaluation. During a June 1996 psychiatric evaluation the Veteran reported that he began abusing cocaine at age 18 when he was in Vietnam. The Veteran also reported that while he was in Vietnam he was responsible for storing corpses and putting them in bags. The Veteran further reported feeling very upset and unable to cope including symptoms of sleep disturbance and frequent nightmares. The physician found the Veteran suffered from mild to moderate difficulties in his personal, social and occupational adjustment that impaired his ability to tolerate work pressures. Based on the examiner's findings as well as the Veteran's reported in-service stressors, the physician diagnosed the Veteran with PTSD. In a May 2009 statement, the Veteran asserted that his PTSD resulted from an in-service incident in 1975 wherein he asserted he was falsely accused of a crime and incarcerated for 3 months. He further stated that he was released but was arrested again two weeks later and re-incarcerated. In addition, he asserted that he was given a general court martial where he spent another 2 months only to receive a general discharge. A June 2011 VA medical record noted a mental status screening showing depressed mood/anhedonia, decreased energy and suicidal ideation. No anxiety, bipolar, schizophrenia or PTSD symptoms were noted. The Veteran reported that his depression was related to chronic pain and that he was interested in medication. The Veteran also reported a history of depression that began one year prior. He also reported that he had been incarcerated twice during service and that he wanted answers as to why that happened. An Axis I diagnosis noted "consider depressed mood due to chronic pain." At an April 2012 travel Board hearing, the Veteran testified that upon enlisting in the Marine Corps at age seventeen, he was "scared to death." He also reported being falsely accused of a crime and given two special court martials. The Veteran stated that he was imprisoned for months in "the brig" based on the conclusion of an investigator. In addition, the Veteran testified that being imprisoned without a trial had bothered him since that time. The Veteran also testified that he lost his military career and post-service jobs as a result of his in-service imprisonment. VA medical records also show that the Veteran underwent an initial mental health evaluation in May 2012. The Veteran reported that he had been falsely accused of larceny during service at which time he was incarcerated. The Veteran also stated that he was innocent and had struggled for years with a feeling of being treated unfairly. In addition, the Veteran reported the in-service incident had caused difficulty over the years. He reported that his mood could become depressed, that he kept to himself and did not have many friends. The Veteran also endorsed sleep disturbance which he attributed to chronic pain. He also reported being limited physically due to his pain and other health issues and that he frequently worried, particularly about his finances. The Veteran also reported having low energy. The psychiatrist diagnosed the Veteran with depression, not otherwise specified (NOS) and noted Axis II and IV assessments for cervical radiculopathy, degenerative joint disease, dyslipidemia, diabetes and financial concerns. A GAF score of 60 was assigned. In August 2012, the Veteran reported having a depressed mood which he attributed largely to his poor health, including diabetes. The Veteran also reported that he thought a lot about being wrongly imprisoned. The psychiatrist diagnosed the Veteran with depression, NOS, and assigned a GAF score of 60. An October 2012 VA mental health record also shows a diagnosis for depression, NOS. At a January 2013 VA examination, the Veteran was diagnosed with depressive disorder, NOS. The examiner found the Veteran's depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment and disturbances of motivation and mood. The Veteran reported that he did not trust other people and asserted that his PTSD was secondary to being wrongly imprisoned during service. The examiner noted the Veteran was incarcerated after being accused of stealing and that he was discharged under honorable conditions. The Veteran also reported that he had lost jobs due to the reasons surrounding his discharge from service. Following service, the Veteran reported that he began abusing drugs including marijuana, cocaine and crack. He further reported that he had been clean since 1996. The examiner noted no record of any depression or psychiatric disorder during service. No opinion as to etiology was provided. In an August 2015 addendum, the examiner noted the Veteran was diagnosed with PTSD in 1996 and that the current diagnosis of depressive disorder was a progression of the previous PTSD diagnosis. In a March 2016 addendum, the examiner stated the rationale was that depression was a progression of the previously diagnosed PTSD as stated in the August 2015 addendum. November 2015, and June and August 2016 VA medical records noted no depression or anxiety. Additionally, May and November 2015 and June 2016 VA medical records noted negative depressing screenings. Lastly, the Veteran underwent a VA examination in January 2017. The Veteran reported a stressor event of being locked up in "the brig" during service for allegedly stealing a stereo. The Veteran additionally reported that he was not given a trial and felt he was railroaded out of service which caused his psychological disorder. No other in-service stressor event was reported. The examiner noted the Veteran's records showed he had been in trouble for disobeying a lawful order, drug abuse and making false official statements. The examiner further noted that in consideration of his age and immaturity the Veteran was offered a general discharge instead of a trial. The examiner also noted a past history for drug addiction including multiple inpatient treatments. The Veteran reported that be began using drugs during service, including LSD and marijuana, and that he had been clean since 1996. The Veteran further denied using any mental health services. The Veteran was noted as well-groomed and neatly dressed and was found alert and oriented to all spheres. He denied any hallucinations and the examiner noted no evidence of psychosis or delusions. The Veteran also denied any current or past suicidal or homicidal ideation. Affect was noted as irritable. The examiner noted that the Veteran expressed anger at being incarcerated during service and that it "messed up his plans." The examiner also noted the Veteran was not fully cooperative and that he became very irritated when asked to be more specific. The examiner noted the following symptoms: irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, and sleep disturbance. The examiner further noted a 2002 diagnosis for depressive disorder, NOS, and concluded that the Veteran did not have a current mental disorder that conformed to either DSM-IV or DSM-V criteria. Specifically, the examiner noted that the Veteran did not report symptoms of depression or any other symptom that indicated either PTSD or another mental disorder diagnosis. Additionally, the examiner found that the Veteran did not have exposure to an actual or threated death, serious injury or sexual violation, that the Veteran did not report witnessing a traumatic event that occurred to others or learning of a traumatic event. While conceding that being incarcerated was stressful to the Veteran, the examiner found that such stress did not meet the criteria for PTSD and further found that the reported stressor event did not appear to result in long term symptoms of any other mental disorder. Based on the above, the examiner opined that the claimed acquired psychiatric disorder was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." 2. Legal Analysis After a review of the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is not warranted. As noted above, in order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Initially, the Board notes that the Veteran currently does not have a diagnosis for a psychiatric disorder. The Board observes that a necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). However, the record shows the Veteran filed his service connection claim in March 2010 and that he was diagnosed with depression in May 2012. For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the remaining question is whether the Veteran's diagnosed acquired psychiatric disorder is otherwise related to service. In this regard, the Board notes that the Veteran and his representative have consistently asserted service connection for an acquired psychiatric disorder due to in-service stressors related to being wrongly imprisoned. However, beyond the Veteran's current lay statements, a review of the evidence of record shows that in June 1996, the Veteran reported that his psychiatric disorder resulted from stressors related to service in Vietnam. Specifically, the Veteran asserted that he served in Vietnam and was responsible for storing corpses and putting them in bags. A review of the personnel records show the Veteran did not serve in Vietnam. In this regard, an April 1991 VA medical record shows the Veteran reported that his active duty service did not consist of duties overseas. Additionally, in June 2011, two years after filing his service connection claim, the Veteran reported that his depressive symptoms were related to chronic pain, not to any in-service stressor. Accordingly, the Board finds the Veteran an unreliable historian with regard to his active duty service, his reported in-service stressors or as to etiology of his acquired psychiatric disorder. Therefore, the only competent evidence of record as to etiology is the January 2017 VA examination report. During the January 2017 VA examination, the Veteran again asserted that his diagnosed psychiatric disorder was related to being unlawfully "locked-up" and that he felt he was forced out of the Marine Corps. The examiner opined that the claimed psychiatric disorder was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." Initially, the examiner found the Veteran did not have exposure to an actual or threated death, serious injury or sexual violation, and that he did not report witnessing a traumatic event that occurred to others or learning of a traumatic event. Based on the Veteran's reported stressors and the examination findings, the examiner concluded that the Veteran did not meet the DSM-IV or DSM-V criteria for PTSD. Additionally, the examiner noted that the Veteran did not report symptoms of depression or any other symptoms indicating either PTSD or another mental disorder diagnosis. As such, the examiner concluded that the Veteran did not have any mental disorder that conformed with either DSM-IV or V criteria. This conclusion is also supported by November 2015, and June and August 2016 VA medical records noting no depression or anxiety, and negative depression screenings that occurred in May and November 2015, and June 2016. The Board notes that this case was previously remanded based upon findings that the VA examiner did not consider the complete medical history, including the June 1996 PTSD and May 2012 diagnoses. In this regard, the January 2017 VA examiner did note the 2012 diagnosis for depression, but found a lack of symptoms for a current diagnosis. The examiner also provided a detailed report as to why the Veteran did not meet the criteria, either under DSM-IV or DSM-V, for either PTSD or depression; thus, rendering the 1996 PTSD diagnosis moot. Accordingly, the Board finds the January 2017 VA examination adequate as it considered the Veteran's medical history. Furthermore, with regard to the June 1996 PTSD diagnosis, as noted above, that diagnosis was based on the Veteran's untruthful report of having served in Vietnam. Accordingly, the Board finds the June 1996 PTSD diagnosis of no probative value as it was not based on the Veteran's actual service; thus, there is no competent evidence of record establishing a diagnosed psychiatric disorder that is etiologically related to an in-service incident. Based on the above, the Board concludes that while the Veteran may have had a diagnosis for depression during the pendency of his appeal, the competent evidence of record does not establish that his psychiatric disorder was related to an in-service event and the second Shedden requirement has not been met. Lastly, the Board recognizes a June 2011 VA medical record in which the Veteran reported depressive symptoms related to chronic pain. The Board notes that this record may be considered to raise a theory as to service connection on a secondary basis. Specifically, whether the Veteran's depressive disorder was caused or aggravated by his service-connected fracture of left distal ulna with degenerative joint disease. Initially, the Board notes that the June 2011 VA medical record did not specify a particular disability with regard to the current complaints of chronic pain. In any event, as noted above, the Veteran has been found to be an unreliable historian as to the etiology of his claimed psychiatric disorder. Therefore, the Board does not find any probative value in the June 2011 medical record as it was based on the Veteran's lay statements. Importantly, the Veteran and his representative have consistently related an acquired psychiatric disorder to service-related events and none of the VA examination reports show the Veteran asserted that his service-connected disability caused or aggravated his claimed psychiatric disorder. Furthermore, the Board notes that the January 2017 VA examination report shows the Veteran was uncooperative during the examination. Specifically, the examiner noted that the Veteran became very irritated and uncooperative when asked to be more specific with regard to his claim. VA's duty to assist in developing the facts and evidence pertinent to his claim - including the provision of a VA examination - is not a one-way street, and it is his responsibility to work with VA with regard to development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Unfortunately, due to the Veteran's uncooperative behavior during the January 2017 examination, particularly with regard to specifics of his claim on appeal, the examiner was unable to reach any further determinations which might have included a potential claim based on secondary service connection. As such, the Board concludes that entitlement to service connection on a secondary basis is not warranted. Accordingly, the Board finds that the second Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. Thus, absent an in-service event, service connection for an acquired psychiatric disorder must be denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). (Continued on the next page) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs