Citation Nr: 1814224 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 10-40 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California 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 WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1962 to June 1965, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2015. A transcript of the hearing is of record. This matter was before the Board in July 2015 and August 2017, at which time it was remanded for further evidentiary development. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has demonstrated some symptoms of PTSD, but has not met the diagnostic criteria for PTSD required by VA regulation. 2. The Veteran has current diagnoses of delusional disorder and alcohol use disorder. 3. The medical evidence of record does not show that any psychiatric disorder is etiologically related to any disease, injury, or incident in-service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.307, 3.309, 3.310, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While "psychoses" are one of the enumerated conditions, for the purposes of 38 C.F.R. § 3.309(a), the term "psychosis" only includes diagnoses of brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. As the Veteran's diagnoses of record do include delusional disorder, service connection on a presumptive basis as a chronic disease will be considered. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125 (2016); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-V), and VA has issued a final rule amending certain provisions in the regulations to reflect this update, including 38 C.F.R. § 4.125(a). 79 Fed. Reg. 45093. However, the amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to appeals, such as the instant claim, that were certified to the Board or pending before the Board prior to that date. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran has contended that he has PTSD arising from two stressors. He stated that he was in Vietnam as part of a Marine Corps reconnaissance team and that he "was there four times and jumped out of a C-47 three times as part of a special unit." He has also described being a prisoner of war (POW) of the Viet Cong for four days while in Vietnam, where he was tied to a tree and beaten. Efforts taken by VA have confirmed that the Veteran served in a reconnaissance unit with the 3rd Marine Division in Vietnam. The Veteran has not been confirmed to be a POW consistent with 38 C.F.R. § 3.1(y) and there are no records to substantiate his contentions regarding capture by the Viet Cong. The Veteran's service treatment records and separation examination report are silent as to any psychological complaint, treatment or diagnosis. The Veteran first received a diagnosis of PTSD in March 2005 after a PTSD checklist was done by a psychiatric nurse during a VA mental health admission evaluation. After that initial evaluation, he was diagnosed with PTSD, rule out bipolar with delusions, and alcohol dependence. He also reported to the examiner that he had a "closed head injury" from a motor vehicle accident in 1989 and insomnia since. Substance abuse treatment was suggested but refused. The Veteran was placed on Mirtazapine for mood, but subsequent medical records did not contain prescribed medications for psychiatric symptoms. At an annual health evaluation in March 2006, a PTSD screening was negative. A depression screen and alcohol screen were both positive. A PTSD screen was also negative at an April 2007 health evaluation. At an annual health examination in April 2008, a PTSD screening was also negative. An alcohol screening was positive. In June 2008, the Veteran denied most PTSD symptoms, but did report nightmares, intrusive memories, increased startle response, hypervigilance, and mood swings. Reduced alcohol intake was prescribed. An October 2008 assessment diagnosed anxiety disorder, PTSD, alcohol dependence, rule out bipolar disorder, paranoid personality style. It was stated that the Veteran had a history of not taking prescribed medication. Reducing his alcohol intake was suggested. A June 2009 mental health assessment stated that the Veteran's occupational and social impairments were caused at least in part by his symptoms of service connected PTSD. In April 2010, a PTSD screen and alcohol screen were positive. Following assessment of a possible future toe amputation in May 2010, a VA clinician suggested a mental health follow-up as the Veteran appeared to have difficulty dealing with new health changes. In a September 2011 mental health assessment, it was noted that the Veteran had PTSD, although a "thorough diagnostic interview" was not done. The Veteran continued to decline psychology services for PTSD. From September 2011 to July 2012, the Veteran was seen regularly by mental health providers and did endorse several symptoms of PTSD. However, no assessment was conducted to diagnose PTSD. No formal PTSD treatment was initiated. Several medications were suggested such as antidepressants, mood stabilizers, and anxiolytics, but denied by the Veteran. In an October 2012 treatment record, the Veteran denied any symptoms consistent with PTSD or psychosis. In February 2013, the Veteran exhibited issues with the potential amputation of his lower extremities and had some therapy. The clinician noted that he exhibited some PTSD symptoms but denied treatment. In February 2017, a PTSD screen was positive. In October 2017, the Veteran underwent a VA psychiatric evaluation which determined that the Veteran symptoms did not meet the diagnostic criteria for PTSD under the DSM-V. He was diagnosed with delusional disorder, mixed type, grandiose and persecutory themes, multiple episodes, currently in remission. He was also diagnosed with alcohol use disorder. The examiner stated that a psychotic disorder was present upon examination, and the Veteran displayed marked delusional thought processes. He determined that he could not differentiate which symptoms were attributable to each diagnosis because although the diagnoses were independent of each other and resulting from separate etiologies, the symptoms overlapped significantly. The Veteran confirmed few of the criteria for a PTSD diagnosis upon examination. The examiner indicated that his diagnoses had symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. The mental status examination revealed an aggressive, defensive manner, poor judgment, circumstantial thought-processes, and obvious delusional thinking that was grandiose and persecutory. He demonstrated delusional beliefs about Vietnam and later working for the FBI as an "occasional assassin" for many years. He stated he recently got an order, drove to a local bar, and described "killing one person last week." The examiner stated that the Veteran reported minimal symptoms of PTSD, and that those reported were more consistent with a delusional disorder. He noted that the first recorded diagnosis of delusional disorder in VA records was in March 2005. The Veteran denied current mental health treatment and any medications. The examiner determined that the Veteran's diagnoses of delusional disorder and alcohol use disorder met the DSM criteria, but that there was no evidence they were related to his military service, as he was first diagnosed and treated for both mental health issues after service. Therefore, there was no nexus between service and the diagnoses, and he determined they were less likely than not incurred in or caused by service. The Board finds the VA examination report and the examiner's opinion to be highly probative. The opinion was based upon the evidence as a whole, including the Veteran's contentions, his reported history, and the medical evidence of record. A detailed rationale was provided for the opinion and it is consistent with the medical record. The Board recognizes that the Veteran has had PTSD listed in his medical records as a current problem since March 2005, after a PTSD checklist was performed. There are also several positive PTSD screens in the record. However, such screens are meant as quick diagnostic tools and are not full psychiatric evaluations. Further, these notations are outweighed by the results of the complete DSM diagnostic examination conducted in October 2017, which determined that the Veteran did not have a diagnosis of PTSD under DSM criteria. As there is no medical evidence that the Veteran has had a diagnosis of PTSD consistent with DSM criteria, service connection for PTSD is not warranted. 38 C.F.R. § 4.125(a). The Veteran does have diagnoses of delusional disorder and alcohol use disorder. However, there is no indication of a relation to service. The first documentation of delusional thinking was in March 2005, many years after service. As there is no evidence of delusional disorder in service or within a year of service, and no evidence of a continuity of symptomatology, neither direct service connection nor service connection on a presumptive basis as a chronic disease is warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board finds that the preponderance of the evidence is against granting service connection. 38 C.F.R. 3.303(a). The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs