Citation Nr: 1819622 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 12-07 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his parents ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from May 1999 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing held before an RO representative in December 2013. A transcript of the hearing has been associated with the Veteran's electronic claims file. In August 2016, the Board remanded the issue for additional development. Based on the completion of the requested development and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to the above issue, the August 2016 Board remand included the issue of entitlement to service connection for a left knee disability. In a subsequent March 2017 rating decision the Appeals Management Center (AMC) granted service connection for left knee strain and left knee instability, assigning ratings and effective dates for both disabilities. The foregoing represented a complete grant of the left knee issue on appeal and it will not be addressed further herein. Subsequent to the last adjudication of the claim by the AMC additional relevant evidence was associated with the claims file by VA. In April 2017, the Veteran submitted a waiver of initial consideration of evidence by the RO and requested that the matter be sent immediately to the Board. In context, while the waiver did not explicitly discuss evidence added by VA it is clear that the Veteran intended for the Board to adjudicate the claim without a remand for initial consideration of any additional evidence by the RO. As such, the Board may proceed with an adjudication of the claim. FINDING OF FACT An acquired psychiatric disorder was not manifest in service and is not otherwise related to service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). There is a one year presumption for psychoses. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also 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 for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2017). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2017); see also 38 U.S.C. § 1154(b) (2012). Similarly, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The Veteran contends that he experienced multiple stressful events in service that caused a current acquired psychiatric disorder. Specifically, he asserts that stressful events included serving on a naval vessel off the coast of Southwest Asia in the aftermath of September 11, 2001; being belittled and told he would not succeed in the Marine Corps; having a close associate commit suicide; and being punished for a fight that he had not started. The Veteran served as a U.S. Marine Corps food service specialist. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of an acquired psychiatric disorder. The records indicate that the Veteran received treatment while deployed to Okinawa, Japan in Southeast Asia in 2000 and 2002 but was otherwise stationed with his primary unit at Camp Pendleton, California where he received treatment in September and October 2001. The Veteran's personnel files document a May 2002 charge of without authority failing to go at the time prescribed to his appointed place of duty (the mess hall). Although discharged at the lowest paygrade, he received an honorable discharge at the end of his obligated active service (with a stop-loss, 3 month extension for the convenience of the government) and was awarded a Marine Corps Good Conduct Medal, meritorious mast, and certificate of commendation. Despite multiple requests for additional service personnel records, the records that were obtained do not explicitly reveal the reason for discharge at pay grade E-1. The Veteran reported to clinicians and adjudicators that it was because of his actions in an off-base fight. The Veteran's original claim in January 2005 was for "mental anguish" with a disability onset of May 1999. In a contemporaneous statement, he reported nightmares, sleep deprivation, and anger problems. A January 2005 VA treatment record noted a positive PTSD screen. The Veteran was referred to the PTSD clinic. In a May 2005 stressor statement, the Veteran reported mental health problems due to boot camp training, being on a naval vessel in Iraq coastal waters after September 11, 2001, "always being belittled," and being told by a gunnery sergeant that the Veteran would not make it in the Marine Corps. In a May 2005 statement, the Veteran described symptoms of anger, sleep problems, nightmares, and waking in a cold sweat. In June 2007, the Veteran had his initial mental health evaluation. The Veteran reported poor impulse control for the previous 2 years, with problems beginning when his grandmother died while in service and he was not allowed to leave in order to attend the funeral. The Veteran went out, got drunk, got in a fight, hit a man in the face with a beer bottle, was arrested, and was charged with unnecessary assault and battery. The Veteran continued to drink excessively after this incident and admitted to drinking as much as a fifth per day until about 6 months previously. He had been arrested 5 or 6 times since the in-service incident with charges ranging from spousal abuse, to shoplifting, to resisting arrest and fighting. The Veteran also acknowledged chronic marijuana use. The Veteran's mother stated that when the Veteran returned from service his brother "kept telling use something is wrong [with the Veteran] WHEN HE FIRST CAME HOME, saying he was not all there, we thought he was joking." The impression noted that the Veteran's symptoms merged into a fog of recent alcohol abuse. It was difficult to separate the Veteran's substance abuse from possible psychosis or bipolar disorder. The treatment provider concluded that the Axis I diagnoses were poor impulse control with displaced anger, sleep deprivation, rule out psychosis and bipolar disorder, relationship problems, and substance abuse in remission. A July 2007 VA mental health consult note is of record. The Veteran reported that he mainly was stationed in California and may have briefly been in the waters off the coast of Iraq, but did not go ashore in a combat zone and had no other combat exposure. He denied any intrusive or repetitive re-experiencing of either military or non-military events (including natural disasters). The Veteran did report anger control problems, but these did not appear to be related to any trauma. Rather, he attributed onset of anger problems to two incidents in service that left him feeling resentful and unappreciated by the military. Specifically, the Veteran discussed how he was stationed stateside when his grandmother died and he was refused leave to attend her funeral. In addition, he attacked a drunken serviceman with a bottle after being provoked by the other man and felt that it was unfair that he lost his rank and was "forced out" of service after the event. In an addendum, the Veteran reported ongoing drinking (most recently the previous day) and being around others using drugs (although he had not been using himself recently). In August 2007, the Veteran's anger was resolving and he had not had any alcohol for one month. He was permanently separated from his wife and planned to divorce. He used marijuana 3 to 4 times per month to help him relax and deal with pain, stress, or anxiety. In an April 2008 statement, the Veteran reported in-service stressors due to "working hours in main galley... 7 days [a] week during 9[/]11" and "Serving in Korea for more than 2 years, in bi-coastal waters during South and North Korea Incident." A September 2009 letter from the Veteran's mother noted that he did not drink or smoke prior to entering service and that the Marine Corps appeared to "unlock the beast within." The Veteran had symptoms of depression, anger, sleep difficulties, and others. His mother stated that the problems had been present from his return from service, but that she "didn't see it at first" and thought the problems came from his in-service training. VA treatment records document ongoing treatment for Axis I diagnoses of impulse control disorder; mood disorder, not otherwise specified; cannabis abuse; and cannabis related disorder not otherwise specified. During a December 2013 RO hearing, the Veteran discussed how he had been in service when his grandmother died and he was denied leave, as well as other times when he was denied leave that others were granted. He also stated that after getting into a fight that he did not start he was given 45 days restricted duty and incurred bruising due to the fight. The Veteran's mother discussed how he now was "unstable" and that he had not been before service. The Veteran also discussed how a corpsman he had known well had committed suicide, but when asked the Veteran did not know the corpsman's name. The Veteran was afforded a VA examination in March 2017. The examiner noted review of the claims file and medical records. The Veteran reported in-service events that included a denial of leave in 2001 to attend his grandmother's funeral and deployment on a ship "floating around in bicoastal waters, on alert 24/7" after September 11, 2001. The Veteran was not exposed to any combat stressors. Finally, the Veteran reported witnessing the suicide of another service member while in service. As to in-service disciplinary problems, the Veteran reported that he was given non-judicial punishment for complaining about a denied promotion. Subsequently, in 2001 or 2002, he was pushed by an intoxicated service member at a bar off base and responded by punching the man repeatedly and "cutting his face open" with a broken beer bottle. As a result of the incident, the Veteran's rank was reduced by E-4 to E-1. The Veteran had been drinking alcohol at the time of the incident. Following review of the records and examination of the Veteran, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD. Instead, the Veteran's diagnoses were major depressive disorder and alcohol and cannabis use disorder, in early remission. The examiner concluded that the Veteran's depression was less likely than not related to service and more likely than not related to substance abuse and post military situational stressors. The rationale noted that review of the records indicated that irritability, depression, insomnia and fatigue were first documented in 2007, while the Veteran was drinking alcohol heavily and using cannabis. The examiner concluded that the depression at that time was likely a substance-induced mood disorder exacerbated by situational stressors (marital conflict and unemployment). The depression appeared to have persisted in the absence of the substance abuse due to ongoing situational stressors. Initially, as to the Veteran's claimed PTSD, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claims and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a diagnosis of PTSD. The Board acknowledges that there is a positive PTSD scan of record; however, subsequent records clearly have indicated that the Veteran did not meet the criteria for PTSD. The Board finds these specific evaluations and ongoing treatment records of far greater probative weight than a general PTSD screen and any other initial treatment records. In addition, the Board recognizes that the Veteran was referred for PTSD group therapy. The March 2017 examiner, however, explained in detail why the Veteran's symptomatology did not support and had not supported a diagnosis of PTSD. Therefore, the Board finds that the competent medical evidence of record does not show the Veteran to have PTSD at any point during the appellate time period, and there may be no service connection for the claimed disability. As to the Veteran's other diagnosed psychiatric disorders, the Board finds the March 2017 VA examination report of significant probative value. The examiner considered the Veteran's representations, the claims file, the prior examination reports and medical records, and conducted a psychological examination prior to rendering the opinions. Further, a complete and thorough rationale is provided for the opinions expressed. As noted, the examiner concluded that the depression first documented in 2007 was likely a substance-induced mood disorder exacerbated by situational stressors (marital conflict and unemployment). The depression appeared to have persisted in the absence of the substance abuse due to ongoing situational stressors. The Board finds these conclusions the most probative evidence of record as to the etiology of the diagnosed psychiatric disorders. Thus, the Veteran had a substance abuse disorder that had its onset in service or sometime thereafter and ultimately resulted in other psychiatric disorders several years after separation from service. As to the substance abuse disorders, the Board notes that with respect to claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1131 (2012); 38 C.F.R. § 3.301(a) (2017); VAOPGCPREC 2-98 (February 10, 1998). As to the Veteran's contentions that he has a current psychiatric disorder due to his service whether it be PTSD or other psychiatric disorder, he certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing anxiety and depression, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise, the post-service occupational and societal stressors, and the complexity of linking particular psychiatric symptoms to a diagnosed psychiatric disorder and linking that disorder to incidents occurring in service, however, the Board concludes that in this case his statements regarding any such link between the in-service experiences and a current acquired psychiatric disorder are significantly less probative than the conclusions of the medical professionals of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds such conclusions by the Veteran particularly problematic in light of the documented substance abuse disorder, now in remission, but present during the relevant time period when the psychiatric problems had their onset and for which, as noted above, entitlement to service connection may not be awarded. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs