Citation Nr: 1814320 Decision Date: 03/06/18 Archive Date: 03/14/18 DOCKET NO. 15-43 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1986 to February 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Jurisdiction is currently retained by the RO in Louisville, Kentucky. Per correspondence received in December 2016, the Veteran elected to pursue his appeal pro se. In a February 2017 decision, the Board reopened the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder and remanded the issue for a VA examination. In September 2017, the Board remanded this matter for further evidentiary development. The VA psychological examination having been provided, the directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. 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). FINDINGS OF FACT 1. An acquired psychiatric disorder, to include PTSD, was not manifest during service, and is not related to service. 2. A personality disorder has been diagnosed. 3. The Veteran did not serve in combat. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. A personality disorder is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303, 4.9 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The RO provided timely notice in its letter dated July 2014 that met the requirements. The notice included all criteria for service connection on a direct basis and an explanation of the Veteran's and VA's respective responsibilities to obtain relevant evidence. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). The file contains the Veteran's service personnel and treatment records, identified or submitted records of private and VA medical care, and the reports of the VA examinations in February and April 2013, May 2014, and March and September 2017. The Veteran has not identified any additional available, outstanding records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in September 2017. The report was adequate because the examiner considered and addressed the Veteran's contentions, conducted a thorough examination, reviewed the claims file, and provided sufficient supporting rationales for the opinions where necessary. Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's service connection claim decided herein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied. The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). For the aforementioned reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A. Acquired Psychiatric Disorder The Veteran contends he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. The preponderance of the evidence is against the claim. The Veteran denied any history of mental health treatment prior to active service or during active service to the VA psychological examiner in March 2017. The record reflects the Veteran was not administered a psychiatric evaluation in his separation examination in January 1990. The Veteran denied a history of depression, excessive worry, nervous trouble, and trouble sleeping. A psychiatric evaluation in October 1994 was normal. The Veteran reported he was in good health and took no medication, he also denied symptoms of depression, excessive worry, or nervous trouble, or treatment for a mental condition. Thereafter, in a December 1994 physical examination for the Navy Reserves, the Veteran reported he experienced one anxiety attack in 1993, was prescribed Xanax with no further episodes, and was not on medication for the condition at the time. A February 2000 psychiatric evaluation was normal The Veteran denied depression, excessive worry, or nervous trouble. Although he reported to the March 2017 VA examiner that he did not seek mental health treatment until 2005, an intake assessment in August 2005 notes the Veteran stated he was diagnosed with chronic PTSD in the Navy and was prescribed Celexa for the past eight years. The Board notes that a PTSD screen dated July 2005 was reportedly negative. The Veteran's treating clinician noted in October 2006 that the Veteran reported a list of PTSD symptoms which suggest he is "well-versed" with the diagnostic criteria. VA outpatient treatment records dated October 2006 to September 2017 reflect diagnoses of major depression, mood disorder, generalized anxiety disorder, panic disorder with agoraphobia, and alcohol abuse. The post-service records reflect a history of symptom and military service inconsistencies. In April 2014, the Veteran sought weekly-based treatment. He reportedly expressed fear about pursuing treatment to the treating clinician, who responded that if he could make it through Navy SEAL training, he could make it through trauma-focused therapy. The Board notes that the Veteran's DD-214 does not reflect the Veteran served as a Navy SEAL at any point in his active service. The Veteran was assessed with an unspecified trauma and stressor related disorder. August 2014 VA treatment records indicate the Veteran's PTSD screen was negative. Thereafter, in a September 2014 hospitalization, it was noted the Veteran had been followed by VA mental health services and that the Veteran said he is diagnosed with PTSD. The treating clinician, however, reported that the documented history is inconsistent, as it was noted in one progress note that he is "well-versed" in PTSD diagnostic criteria. The clinician further stated that the Veteran has said he served as a SEAL, but told another he was a boatswain's mate. It was also noted that the Veteran reported he was discharged from service due to PTSD, which was not consistent with his personnel records. The discharge summary from the hospitalization indicates that the Veteran was diagnosed with major depression and alcohol use disorder. The record reflects the Veteran was afforded a VA psychological examination in March 2017. The VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reported the Veteran met the diagnostic criteria for a personality disorder. The VA examiner referenced the prior diagnosis of PTSD at the VA mental health clinic. Nevertheless, the VA examiner reported that she was unable to corroborate that the Veteran currently met the criteria for the condition. While the VA examiner stated that her examination included objective psychological testing with symptom validity measures, the treating clinicians at the VA mental health clinic appeared to rely heavily upon the Veteran's self-report of PTSD symptoms and did not incorporate validity measures. The VA examiner indicated that symptom exaggeration was observed and that the Veteran's reports were at variance with information documented in medical and military personnel records. The VA examiner expressed further diagnostic concern regarding the Veteran's asserted stressors, which had changed over time. The asserted combat stressors, the VA examiner noted, were also not verified by the RO. The VA examiner indicated the Veteran also did not report any non-combat stressors, and that she was unable to accept the Veteran's self-reports of PTSD symptoms at face value. Pursuant to the September 2017 Board remand, the March 2017 VA examiner submitted an addendum opinion in September 2017. The VA examiner noted VA mental health clinicians diagnosed the Veteran with PTSD, but that there were documented concerns with his self-report. The VA examiner referenced the Personality Assessment Inventory (PAI) that reportedly yielded valid results but highlighted the clinicians' caution due to idiosyncratic responding, defensiveness about particular shortcomings, exaggeration of certain problems, and negative self-impression. The VA clinicians also reported that areas of clinical elevation included paranoia, anxiety and anxiety-related problems, depression, borderline features, aggression, schizophrenia, mania, and somatic concerns. The VA examiner further noted that when the Veteran was admitted for an inpatient hospitalization in September 2014, he was diagnosed with major depression and alcohol use disorder rather than PTSD. The VA examiner reported that upon her review of the medical records, there is no consensus in diagnosis and reiterated her prior concerns addressed in her March 2017 opinion concerning extreme elevations on symptom validity scales, the Veteran's reports that are in variance with medical and military personnel records, his change in stressors, and combat stressors not verified by the RO. The Board finds the VA examiner's March and September 2017 opinions of significant probative value when read together. The examiner's opinions were based on a review of the relevant treatment records and a clinical examination, and clear and detailed contentions of the Veteran. The opinions adequately addressed and reconciled the Veteran's subjective complaints contained in the record with the clinical examination. Further, complete and thorough rationales were provided for the opinions rendered. The conclusions are fully explained and consistent with the evidence of record, and are accorded significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 295. Based on the evidence of record, service connection for a psychiatric disability is not warranted in this case. The Veteran stated he was diagnosed with PTSD by VA clinicians. Jandreau, 492 F.3d at 1377. However, the Board has considered the Veteran's credibility. The record reflects the Veteran is not an accurate historian of his active service. At the March 2017 VA examination, the Veteran asserted that he served as a special warfare combatant-craft crewman (SWCC) alongside Navy SEALs, went on patrols, experienced incoming fire, and built runways and ditches. He further stated he witnessed the Highway of Death. The Veteran's DD-214 and military personnel records, however, reflect no such service as a SWCC or SEAL. Rather, records indicate the Veteran served as a boatswain's mate. As discussed above, the RO was unable to verify the Veteran's assertion of combat experience. Further, the Veteran's active service predates the Persian Gulf War and his asserted in-service stressors. The Board has specifically considered the provisions of 38 U.S.C. § 1154(a) but the nature and circumstances of his service does not warrant work with Navy SEALs. Rather, the Veteran served as Assistant Chief Master-at-Arms with the Naval Mobile Construction Battalion, coordinator of the Battalion's urinalysis screening process, Barracks Petty Officer, and Mustering Petty Officer. Military personnel records further indicate the Veteran participated in mobilization readiness training with the Naval Construction Force. The award citation for the Navy Achievement Medal submitted by the Veteran in November 2017 similarly does not corroborate the Veteran's claims as it commends the Veteran's reserve, rather than active, service. The VA examiner and the Veteran's treating VA clinicians have expressed concerns over medical and military service history that is at variance with the medical evidence of record and personnel records. The record does not establish justification for the diagnosis of PTSD. The March 2017 VA examiner provided a thorough examination that included symptom validity measures. The Board concludes that the normal March 2017 VA examination and the notations by clinicians of symptom exaggeration in September 2014 are more probative and more credible. The Board recognizes the Veteran has other diagnoses of record, including major depression and generalized anxiety disorder. The Veteran's statements, however, do not establish a competent relationship to service. He denied any history of mental health treatment prior to active service or during active service. Psychiatric evaluations upon separation in January 2000, and thereafter in October 1994 and February 2000 were either silent normal. Equally important, he denied a pertinent history at such times. The evidence reflects a remote post service onset of a psychiatric disorder. Although he has reported an in-service onset, such statements are inconsistent with his denial of pathology at separation and in 1994. In addition, it is inconsistent with the normal findings in October 1994. The contemporaneous records are far more credible than his remote statements. The Veteran's report of a relationship to service is not credible. B. Personality Disorder Regarding the Veteran's personality disorder, the condition was first diagnosed by the March 2017 VA examiner. The VA examiner indicated the Veteran met the diagnostic criteria for traits associated with the condition as he presented with pervasive and problematic personality traits that have contributed to strained and distant relationships with family members, failed marriages, and job terminations. The VA examiner opined that there is no objective evidence that this condition had its onset during active service or is related to any in-service disease, event, or injury. The Board also notes that 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; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs