Citation Nr: 20044580 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 17-39 722 DATE: July 2, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified depressive disorder, and schizophrenia, is denied. FINDINGS OF FACT 1. The Veteran does not have PTSD that is diagnosed in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM-5) for any period on appeal. 2. The Veteran’s non-PTSD psychiatric disorders did not have onset during active service and are not otherwise related to active service; there is no persuasive evidence that schizophrenia manifested to a compensable degree in a specified period of time following service. CONCLUSION OF LAW The criteria for an entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, unspecified depressive disorder, and schizophrenia, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the active duty from March 1987 to February 1990. While the Veteran had requested a Board hearing (see Form 9), he withdrew that request in March 2018 through written correspondence. Although a new VA examination (related to headaches) has been associated with the claims file since the issuance of the April 2020 Supplemental Statement of the Case, as this is not pertinent to the issue at hand, the Board may proceed to adjudicate the appeal at this time. Most recently, the Board remanded this issue in August 2018 to obtain outstanding Social Security Administration. As these records were obtained and associated with the claims file, the Board finds that there has been a substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded claims for service connection for allergic rhinitis and headaches; however, the RO subsequently granted these claims in a February 2019 decision, and thus, they are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating and effective date, is separate from any prior appeal regarding entitlement to service connection). In this case, the Veteran has not timely disputed either the effective date for the award of service connection or the ratings assigned for these conditions. The Veteran’s representative raises various contentions regarding service connection for an acquired psychiatric condition. First, he contends that the RO should not have scheduled a VA psychiatric examination post-August 2018 Board remand, as the remand only requested the SSA records be obtained. The representative argues that the RO employed a “develop to deny” tactic, since the record contained evidence from private treating providers favorable to the claim. The representative points out that the August 2018 Board remand directive only instructed the RO to obtain outstanding SSA records on this claim, but the April 2020 SSOC reported, “RO was directed to obtain SSA records and then to schedule an exam with medical opinion.” The Board agrees with the representative that this was an inaccurate statement in the SSOC, as the August 2018 Board remand did not order an examination. However, the RO is not precluded from conducting more development than the Board ordered. It is always possible that additional evidence obtained while the claim is in remand status (for example, here, the July 2019 private medical opinion) will lead to other development. On remand, the RO had an obligation to review all the evidence of record, once again. If, in doing so, the RO determined that the evidence was not entirely persuasive or adequate, then it had a duty to assist in developing the claim further. The fact such development then resulted in evidence unfavorable to the claim does not lead to a conclusion that the RO developed the claim merely to deny it. In fact, as discussed in more detail below, the Board finds the favorable evidence is not persuasive. The representative also disputes the adequacy of the November 2019 VA psychiatric examination. Specifically, the representative argues that “while [the November 2019 VA] examiner found that ‘the claimant does not appear to be suffering from a psychiatric diagnosis,’ and central to that evaluation appears to be the perception that the claimant ‘… is endorsing symptoms that do not exit [sic] suggesting an attempt to exaggerate psychiatric symptoms.’ However, . . . it is unclear to what symptoms the examiner refers.” (see May 2020 correspondence letter). First, it is quite clear from the entire context of that section of the report what symptoms the examiner was referencing. The report states “[The Veteran] reports voices from outside if his head, seeing shadows, olfactory hallucinations, and gustatory hallucinations. Despite his report of psychotic symptoms . . .” Second, it remains the examiner’s prerogative, as a mental health professional, to interview the Veteran, review the record, and determine whether a psychiatric diagnosis is present. The examiner supported his conclusion that one was not, noting the discrepancy between the Veteran’s “report of psychotic symptoms” and the observable findings that his “thought processing was logical, goal directed and did not evidence periods of distractions due to internal stimuli,” “his speech prosody, rate and rhythm were within normal limits. He was oriented on all spheres […] No evidence of psychotic thinking was noted. His thought content, abstractions and thought processing were intact. His insight and judgment were fair.” See November 2019 VA psychiatric examination. Finally, the representative points to the Veteran’s statements and treatment records from January 2017 and a June 2018 VA examination in support of an argument that the Veteran has PTSD. The 2019 VA examiner’s conclusions (including that the Veteran does not have PTSD) are but one piece of evidence that will be weighed along with all the other competent evidence. The fact the 2019 VA examiner reached a conclusion unfavorable to the Veteran does not render the examination inadequate. The Board finds this examination was, in fact, adequate. Neither the Veteran nor the representative has raised any other specific issues with the duty to notify or 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). Thus, the Board need not discuss any other potential issues in this regard. 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; 38 C.F.R. § § 3.102; 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, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § § 3.303 (d). In addition, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time following service, including psychoses. 38 U.S.C. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. In this regard, under 38 C.F.R. § 3.384, the term “psychosis” is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, shared psychotic disorder, and substance-induced psychotic disorder. In this case, the Veteran has been diagnosed with unspecified and paranoid schizophrenia (see 2018 private treatment records from Neuropsychiatric care center) during the appeal period, so the Board will consider presumptive service connection. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the provisions of 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and in-service stressors; and credible supporting evidence that the claimed in-service stressor or stressors occurred. 38 C.F.R. § 3.304(f). The Veteran seeks service connection for PTSD or a psychiatric condition. He claims that he was assaulted twice in service (once by a fellow soldier with a metal helmet liner, thrown to his face where he did not lose consciousness but “saw stars” and sought treatment; second, being hit in face by a bottle and incurring facial laceration/nose injury, but having no memory of the incident and relaying his friend’s account that the Veteran was taken to the hospital and that he was down “in a pool of blood”). The Veteran’s service treatment records document two occasions of him being hit in the face. May 1987 service treatment records document the Veteran fractured his nose and incurred an orbital contusion on the left side from being hit in the face by a helmet liner. However, he was noted to present “neuro normal limits, no LOC [loss of consciousness], no edema, with intact head and good eye movement, and nothing abnormal detected; he was found to be alert and oriented.” The impression at the time was only bruise and he was told to ice it. December 1989 service treatment records show the Veteran’s report of being hit in the face by a bottle, and he was diagnosed with facial lacerations. It was noted he lost consciousness, but not from the blow. He was noted to be alert and oriented, with no other injuries and he presented within normal limits. However, the mere existence of an in-service event is not enough for a grant of service connection. In this case, even acknowledging his in-service injuries as documented in his service treatment records, the Board concludes that the claim must be denied, because the most probative evidence does not support a diagnosis of PTSD in accordance with the DSM-5 criteria and does not otherwise show any other diagnosed psychiatric condition is related to those incidents. Effective August 4, 2014, VA amended the regulations regarding mental disorders by removing references to DSM-IV and replacing those references with the recently updated “DSM-5.” These new provisions do not apply to claims pending before the Board on or before August 4, 2014. Here, as the Veteran’s claim currently on appeal was received in 2017, long after August 4, 2014, DSM-5 is applicable to this case. Initially, the Board is cognizant of the private medical records that provide a diagnosis of PTSD. However, these were provided either under the incorrect standard or under the DSM-IV standard. Moreover, the Board finds them to have, at most, only minimal probative value for the following reasons. First, with regards to the July 2019 private medical opinion provided by the Veteran’s private psychiatric mental health nurse practitioner (PMHNP), despite the fact that the Veteran had been under her care since January 2018, the PMHNP herself noted that she has not personally reviewed his medical history/military history in furnishing a diagnosis of PTSD (and this was not furnished under the applicable DSM standard). Furthermore, although the PMHNP stated that she is familiar with his history and that she has assessed the Veteran often while under her care, such as a PHQ-9 assessment, the Board notes that this is not the appropriate standard for establishing a diagnosis of PTSD for VA purposes. The PMHNP further concluded, that “in my personal experience and in the medical literature it is known that people who suffer from TBIs have an increased risk of developing PTSD” after noting that the Veteran has been diagnosed with TBI in service; however, the Board notes that the Veteran is not service connected for TBI. As for the March 2018 DBQ examination conducted by the Veteran’s private psychiatrist (Dr. M.A.), although the Veteran was diagnosed with PTSD, that was in accordance with the DSM-IV standard (as opposed to DSM-5), and moreover, it is unclear whether this medical provider reviewed all pertinent records in furnishing that diagnosis, as there is no indication of such. Additionally, while there are treatment records by Dr. M.A., he once indicated the Veteran was a poor historian, and despite continuously diagnosing the Veteran with PTSD, at no time was this diagnosis explained in accordance with the DSM (neither DSM-IV or DSM-5) standard. Thus, in light of above, the Board finds these records warrant only minimal probative value at most. Throughout the appeal period, the Veteran was afforded multiple VA psychiatric examinations (using DSM-5), but the VA examiners, after reviewing full records, to include the aforementioned private treatment records containing a PTSD diagnosis, consistently found that his symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. The Board gives most probative value to these examinations, as these were furnished after thorough review of all pertinent records and as they provide a rationale as to why the diagnostic criteria were not met, as opposed to the records showing a mere diagnosis of PTSD without any rationale. The lay statements by the Veteran and his wife (describing the psychiatric symptoms of the Veteran) have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis or etiology of a specific mental health disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). As the most persuasive evidence establishes that the Veteran does not have PTSD that is diagnosed in accordance with the DSM-5 for any period on appeal, the Board finds that service connection for PTSD is not warranted. The analysis for service connection claims involving acquired psychiatric disabilities, other than PTSD, follows the direct service connection criteria under 38 C.F.R. § 3.303. In this case, the evidence preponderates against the Veteran’s claim of entitlement to service connection for other disorders. There is no dispute that the Veteran has a current psychiatric disability for he has been diagnosed with various non-PTSD psychiatric disorders, to include unspecified depressive disorder, cocaine use disorder, alcohol use disorder (sustained remission), generalized anxiety, paranoid schizophrenia, anti-social personality disorder, among others, throughout the appeals period. Despite the most recent VA examiner concluding no psychiatric diagnosis is warranted at this time, the Board will concede a current disability based on the other medical evidence. His service treatment records do not show any complaints, treatments or diagnosis related to any psychiatric condition. As noted earlier, his service treatment records do include two incidents in which the Veteran was hit in face. Upon review of all the evidence, lay and medical, the Board finds the weight of the evidence shows that an acquired psychiatric disability, other than PTSD, was not incurred during the Veteran’s period of active service, did not have onset during active service, and was not otherwise caused by his active military service. First, with regards to his diagnosed schizophrenia (one of the chronic diseases warranting service connection on a presumptive basis), the Board notes that there is no indication that this condition manifested to a compensable degree within one year following service. In fact, it appears that he first sought treatment for his psychiatric condition in 1999, and during that time, he did not report any traumatic military experience, or claim that a psychiatric condition was related to any service-related incidents or began during his service. Although he reported experiencing hallucinations 8 years earlier, he added this was when he started using cocaine and he also reported using drugs since age 15 and having completed several rehab programs (see December 1999 VA treatment records). While the Board is cognizant of the July 2019 positive private medical nexus opinion by a PMHNP, diagnosing the Veteran with schizophrenia and opining that “according to U.S. Medicine, schizophrenia is a condition that can manifest itself during military service,” this has no probative value and thus, fails to serve as persuasive evidence in this case. This was a general statement, not a finding specific as to this Veteran’s medical history, and the PMHNP herself indicated that neither his medical history nor the circumstances/events of his military service had been reviewed in furnishing this opinion. With regards to personality disorders—such as the diagnosed antisocial personality disorder (see November 2019 VA examination)—the Board notes that these are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Thus, service connection is not warranted for the diagnosed antisocial personality disorder. Finally, with regards to his various other non-PTSD psychiatric conditions, the Board notes that there is only one medical nexus opinion: December 2017 VA examination. After an extensive review/discussion of all pertinent records and a thorough examination of the Veteran, the VA examiner concluded that it is less likely than not that the Veteran’s diagnosed mental disorders are a result of an in-service event. In furnishing a negative nexus opinion, the VA examiner explained that there are no mental symptoms or treatments related to his current psychiatric conditions in his service treatment records, and further pointed out that the Veteran sought care for his psychiatric condition for the first time after separation in 1999. The Board gives the most probative value to the December 2017 VA examination, as this was provided after extensive review of all records, to include his service records and post-service treatment records, substantiated by concrete factual findings. The Board notes the examiner’s comment that the Veteran first sought mental health treatment in 1999 is slightly incorrect, as his SSA records contain June 1996 records from Cherry Hospital indicating this was his first hospitalization. The Board does not find this 3-year difference affects the probative value of the examiner’s opinion as the underlying facts remain the same – there was no psychiatric treatment during service nor did the Veteran ever report in-service onset of symptoms nor a continuity of symptoms when he did finally begin seeking mental health treatment. He had many years of psychiatric treatment prior to filing his claim with VA for service connection, and he did not report such a history, and this weighs heavily against his current allegations. See also 1997-1998 Cherry Hospital records reflecting no discussion of onset of psychiatric symptoms during service. The VA examiner’s conclusion the Veteran’s psychiatric issues are not related to service is also supported by conclusions by varied mental health professionals over the course of several years, each finding his psychiatric symptoms are due to his long-standing substance abuse. See, e.g., June 1998 Cherry Hospital records with psychiatric impressions including mood disorder secondary to cocaine; June 21, 2003 VA note by attending psychiatrist (admitted for homicidal ideations in context of crack cocaine and alcohol abuse, Veteran well-known at that facility and has had multiple hospitalizations with history of substance abuse induced mood disorder and antisocial personality); June 2003 VA discharge summary listing diagnoses as substance-induced mood disorder and substance-induced psychotic disorder; August 2006 psychiatric review by a Ph.D. for the SSA indicating that all of the Veteran’s psychiatric hospitalizations were for primary substance disorders with secondary mental conditions being related to substance use (e.g. substance-induced mood disorder or psychosis), also noting the Veteran’s disturbances in mood and behavior have been clearly associated in the medical records with his substance abuse. The lay statements by the Veteran and his wife (describing the psychiatric symptoms of the Veteran) have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis or etiology of a specific mental health disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). As the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, the benefit-of-the-doubt doctrine has no application. See 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. at 53. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.