Citation Nr: 1808578 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-32 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, not otherwise specified (NOS), depressive disorder, NOS, and anxiety disorder, NOS. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty for training (ACDUTRA) from September 1998 to February 1999 and on active duty from December 2003 to June 2004 (with service in Kuwait/Iraq from February 2004 to May 2004). This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during at a travel board hearing. A transcript of that hearing is included in the claims file. The Board previously remanded this case for additional development in February 2013, March 2016, and July 2017. The case has now been returned to the Board for appellate review. FINDINGS OF FACT 1. The competent and probative evidence establishes that the Veteran has current diagnosis of alcohol dependency, alcohol-induced mood disorder, cannabis abuse, personality disorder NOS with antisocial and borderline traits under the DSM4TR. 2. The Veteran has no current diagnosis of PTSD. 3. There is insufficient evidence to find that the Veteran's claimed in-service stressors occurred. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, not otherwise specified (NOS), depressive disorder, NOS, and anxiety disorder, NOS have not been met. 38 U.S.C. §§ 105, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.159, 3.301, 3.303, 3.304. . REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §5103 (2012); 38 C.F.R. § 3.159(b) (2017). VA provided the required notice in August 2004, prior to the initial adjudication and readjudication of the claim in a supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007) (VCAA notice must generally be provided prior to the initial rating decision). VA also satisfied its duty to assist the Veteran in developing his claim. 38 U.S.C. § 5103A (2012). The RO associated all available service treatment records (STRs), service personnel records (SPRs), and private and VA treatment records with the claims file. The Veteran was also provided with a most recent VA examination in April 2013. The examination is adequate, as the examiner reviewed the Veteran's medical history, including his STRs, interviewed and examined the Veteran in person, and provided sufficiently detailed findings concerning his psychiatric disorder. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The Veteran was afforded another examination in the July 2017 Board remand. However, the evidence indicates that the Veteran did not report for the appointment. There is no record for an attempt to reschedule the examination. The Veteran has not provided good cause for missing the appointment. Therefore, the above actions constitute substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Veteran has not identified any additional evidence relevant to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 38 U.S.C. § 5107(a) (2012). II. Service Connection The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, NOS, depressive disorder, NOS, and anxiety disorder, NOS. As per the July 2017 Board remand, the Veteran was scheduled a VA examination in August 2017 in order to further ascertain the nature and etiology of his psychiatric conditions. However, he failed to appear at the examination. His claims file does not contain any evidence indicating that he attempted to reschedule the examination or provide good cause. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for the examination or reexamination, an original compensation claim will be adjudicated on the evidence of record as it stands. 38 C.F.R. § 3.655(a)(b). Therefore, under 38 C.F.R. § 3.655(b), this original service connection claim will be adjudicated on the evidence of record as it stands. Generally, service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for PTSD, there must be medical evidence diagnosing PTSD; a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, (DSM-V). See 79 Fed. Reg. 45099 (August 4, 2014). If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Initially, the Board notes that references in the rating schedule to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV or DSM4TR) has been replaced with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, these changes are not intended to apply to claims that were pending before the Board on or before August 4, 2014. See 80 Fed. Reg. 14308 (Mar. 19, 2015). As the Veteran's appeal was before the Board prior to August 2014, the Board will consider the nomenclature contained within the DSM-IV. In particular, the Board notes that VA examinations of record, the first in July 2010 and the most recent in April 2013, were conducted prior to August 4, 2014, and thus, both exams refer to the DSM-IV as required by law at the time. The Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (finding that the Board made a medical determination as to the relative severity, common symptomatology, and usual treatment of an ACL injury without citing to any independent medical evidence to corroborate its finding). Therefore, the Board looks to medical evidence in the Veteran's claims file to determine what psychiatric disorder(s) the Veteran currently has. The medical evidence of record establishes that the Veteran currently meets DSM-IV criteria for alcohol dependency, alcohol induced mood disorder, cannabis abuse, personality disorder NOS with antisocial and borderline traits, but the evidence does not demonstrate that the Veteran meets DSM-IV criteria for a diagnosis of PTSD. Therefore, because there is no diagnosis of PTSD or of any acquired psychiatric disorder for VA purpose, the Board finds that the criteria for service connection for an acquired psychological disorder, to include PTSD, bipolar disorder, NOS, depressive disorder, NOS, and anxiety disorder, NOS, have not been met. PTSD: The medical record in the Veteran's claims file mentions a diagnosis of PTSD or provisional diagnosis thereof. Most of the entries of PTSD diagnosis were made based on self-reporting of diagnosis by the Veteran. Notable exceptions where the diagnosis was given after an evaluation by experts in psychology are: an evaluation conducted by Process Strategies in December 2009; an evaluation conducted by Mr. J.A.in July 2010; DDS adult mental status examination in December 2015; a VA PTSD examination in July 2010; and another VA PTSD examination in April 2013. Process Strategies, Mr. J.A., and the DDS evaluations conclude that the Veteran has a diagnosis of PTSD, whereas both VA examinations conclude that he does not have a diagnosis of PTSD conformant to DSM-IV. The Board finds that all evaluations here are equally competent because they are provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Therefore, the Board must determine weight and credibility of the evidence to ascertain whether the Veteran has current diagnosis of PTSD for VA purpose. Weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The U.S. Court of Appeals for Veterans Claims (the Court) has instructed that, in order for a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The Board finds that VA examiners' determination is more probative than the determinations provided by Process Strategies, Mr. J.A., or DDS for the purpose of VA compensation claims because non-VA evaluations are based on insufficient facts or data for at least two reasons: (1) lack of access to the Veteran's claims file and (2) Veteran's tendency to provide inconsistent statements to medical providers. First, the December 2015 DDS evaluation is less probative because the report mentions no stressor event. It only states that the axis I diagnosis of PTSD is offered based on the Veteran's report of symptoms of PTSD. Since the DSM-IV diagnosis requires evaluation of stressor events, the Board finds that the DDS diagnosis is based on insufficient fact and not made in conformance with DSM-IV as required by law and thus not probative. Second, the Board concludes that the December 2009 Process Strategies evaluation and July 2010 Mr. J.A. examination are less probative than VA examinations because they are also based on insufficient fact or data for the following reasons. The April 2013 VA examiner points out that the Process Strategies's diagnosis of PTSD in December 2009 is likely inaccurate because the report does not provide any details about mental disorder symptoms that would substantiate the diagnosis. The VA examiner continues that if the Veteran only reported what was present in the report, diagnostic criteria for PTSD were clearly not met. The VA examiner also points out that the Veteran provided inaccurate information during the December 2009 Process Strategies evaluation, where he reported that he participated in "PTSD groups at the VA," which was not supported by VA medical records up to that point. The Board notes that the Veteran reported during the Process Strategies examination that he witnessed a civilian American get shot, but he couldn't do anything about it. The Veteran continued that he tried to get his commanding officer to help the individual out but he felt the officer was already burned out and was ready to retire and didn't make any effort to help the man. This seems to be the only stressor event described by the Veteran during the examination, where the evidence in the claims file suggests that he proposed multiple stressor events over the years. In addition, this stressor was evaluated by April 2013 VA examination, which found was not sufficient to warrant a diagnosis of PTSD. During the July 2010 Mr. J.A. evaluation, the Veteran reported a different stressor event to the examiner. Mr. J.A. read the DSM-IV criteria for PTSD and asked the Veteran what event(s) occurred which would meet the criteria. The Veteran responded that he saw a guy killed in Iraq, where a truck was hijacked at gunpoint. The driver was pulled out from the vehicle and he saw his brains coming out. The Veteran is quoted in the report as saying that "we were bombed a couple of times - on guard a lot - place on the base blown up, the day after out there, scared - two times physical with injuries, people getting physical with me, me and another guy calmed him down, scared too [sic] death - all my life, one time I pulled these guys over, confronted AK 47's to my face and they were pushing me around everything." Those seem to be subset of the stressors evaluated by the April 2013 VA examiner as explained below, and again, they were found inadequate to warrant a diagnosis of PTSD. Lastly, the Board finds that Process Strategies and Mr. J.A.'s evaluations are more susceptible to inaccuracies also because the examiners in those evaluations did not have access to the Veteran's claims file. Review of the claims file reveals inconsistent statements provided by the Veteran to medical professionals over the course of years. Process Strategies, Mr. J.A., and the December 2015 DDS evaluations were conducted without access to the Veteran's medical and service records in his claims file, and thus, these evaluations were based solely on the Veteran's narratives, whereas both VA examiners had considered the Veteran's claims file, which includes previous private evaluations, in addition to in-person interview with the Veteran when determining diagnoses. Ordinarily, neither statute nor regulation requires that a private physician review the Veteran's medical service record before his or her opinion may qualify as competent medical evidence. Gardin v. Shinseki, No. 2009-7120 (Fed. Cir. July 16, 2010). Claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for private medical opinions. However, in this particular case, the Board finds that this lack of access to the evidence in the Veteran's claims file significantly limits the usefulness of the private, non-VA reports especially because, as both VA examiners pointed out and the Board's review of the evidence confirms, that the Veteran has tendency to provide inconsistent statements or past recollection in his interviews with medical personnel over the years and psychiatric evaluations rely more on the patient's narratives than objective testing in determining diagnosis. Here, the record indicates that inaccurate reporting by the Veteran affected assessment of the private examiners. For example, the December 2009 Process Strategies's evaluation reports that the Veteran had not had any prior psychiatric treatment and that the Veteran denied other drug use (than marijuana). However, the Veteran's claims file reveals that he has been treated for his psychiatric conditions as early as in 1993 when he was hospitalized and underwent lithium treatment. Moreover, during the same 1993 hospitalization, the Veteran was diagnosed with polysubstance abuse, and since then, the medical evidence in the claims file shows that the Veteran has regularly been diagnosed with alcohol and drug abuse (e.g., cannabis, crack cocaine) and was involuntarily admitted to River park Hospital for increased drug use in June 2001. As for the July 2010 mental status examination by Mr. J.A., the examiner states in his report that no medical records were available and he noted in particular that the Veteran was vague and uneasy in the interview. For his substance use history, the Veteran reported his alcohol and cannabis use, but he denied any drug related problems. However, his claims file contains a December 2004 VA SATP consult note, which describes that the Veteran came to the facility because he would like to get a grip on my drug abuse. He indicated that his real problem was drugs and he sold Xanax, which was prescribed to him, to support his drug habit. For the foregoing reasons, the Board finds that evaluations by Process Strategies, Mr. J.A., and DDS are less probative than the VA examinations. The Board affords the most weight and credibility to the April 2013 VA examination because it provides the most comprehensive examination and analysis of the Veteran's self-reported stressors in coming to its conclusion and concludes that the Veteran has no diagnosis of PTSD in conformance with DSM-IV. The April 2013 examiner was able to address not only the stressors examined by other non-VA examiners as above, but also other stressors that have not been discussed by any of the private, and/or non-VA evaluations. A total of four stressors were evaluated. The primary stressor was when the Veteran had to shoot his weapon at a man in Iraq wearing a "man dress" about 100 yards away from his vehicle. The second stressor was seeing dead bodies on the side of a road lying as if they had been executed including women and children in Iraq. The third stressor was frequent or mortar or rocket attacks in his vicinity and firefights in Iraq between 2003 and 2004. And an additional stressor was seeing a couple of Americans shot and killed, but being unable to provide help, which was the primary stressor as the Veteran provided in the July 2010 VA examination. The April 2013 examiner noted that the Veteran had recurrent and distressing recollections and dreams of the event. The Veteran exhibited efforts to avoid activities, places or people that arouse recollections of the trauma, markedly diminished interest or participation in significant activities, and feeling of detachment or estrangement from others. Persistent symptoms were: difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner found that the duration of the symptoms is more than one month, but not meeting full criteria for PTSD and that the symptoms described cause clinically significant distress or impairment in social, occupational, or other important areas of functioning, but not meeting full criteria for PTSD. The examiner further reported that due to inconsistent reporting of stressors in various records, it could not be determined if any of the reported stressors were due to his deployment experience, and thus, the Veteran was determined to have no diagnosis of PTSD for the purpose of establishing the criteria for service connection. Based on the most probative medical evidence of record, the Board concludes that the Veteran has no diagnosis of PTSD in conformance with DSM-IV. The Board notes that even if the Veteran had diagnosis of PTSD, the criteria for establishing service connection for PTSD cannot be established because there is insufficient credible supporting evidence that the claimed in-service stressor occurred. Here, the Veteran submitted a statement in support of claim in August 2004 providing a description of two stressor events. In one event, he came under fire while driving in Iraq and another driver was killed. In another, he witnessed a truck driver was shot and was not able to provide assistance. However, in October 2008, VA issued a formal finding on a lack of information required to verify stressors in connection to the PTSD claim. Further, there is no evidence provided by the Veteran or others which support the occurrence of these stressor events. Therefore, the claim for service connection for PTSD fails to meet another criteria required under law. 38 C.F.R. § 3.304 (f). Other psychiatric disorders: The evidence of record indicates that the Veteran was given diagnoses of various psychiatric disorders since he was a teenager to present. In order to ascertain the nature and etiology of his psychiatric conditions, the Board remanded for a new VA examination in February 2013. In accordance with the Board directive, the Veteran underwent a VA examination in April 2013. After reviewing the Veteran's claims file, the April 2013 VA examiner concludes that the Veteran now meets DSM4 criteria for alcohol dependency, alcohol induced mood disorder, cannabis abuse, personality disorder NOS with antisocial and borderline traits. Further, the examiner states that there is insufficient clinical evidence to warrant current continuation of past diagnosis of depressive disorder, NOS, ADHD, or bipolar disorder. Therefore, the Board finds that the Veteran has no current disability for which service connection could be granted. In particular, alcohol dependency, cannabis abuse, and personality disorder are not "current disabilities" for VA purpose. Since mood disorder is induced by alcohol, it is not a "current disabilities" for VA purpose. In general, the law and regulations provide that compensation shall not be paid if disability was the result of the person's own willful misconduct, to include the abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110 (2012); 38 C.F.R. §§ 3.1 (n), 3.301 (2017); see also VAOPGPREC 2-97 (January 16, 1997). Moreover, a personality disorder is not a disease or injury within the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. Lastly, April 2013 VA examination establishes that other psychiatric conditions such as mood disorder or anxiety disorder are caused by substance abuse. In particular, the examiner reports that the symptoms of depression and anxiety noted in the evidence cannot be clearly discerned from those associated with ongoing alcohol dependence because the Veteran's self-described symptoms cited in the Mental Health section of the examination are "of questionable credibility." In conclusion, the examiner states that mood disorder or anxiety disorder is not the causes for substance abuse; in other words, the Veteran is not self-medicating with substance his psychiatric conditions. In the absence of a disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App 223 (1992) In addition, although there are suggestions or indications of a diagnosis during the claim period, the Board finds that the record as a whole does not support a finding of a disability present at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Since the Veteran has no diagnosis of an acquired psychiatric disorder for VA purpose, entitlement to service connection for an acquired psychiatric disorder is denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, depressive disorder, and anxiety disorder, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs