Citation Nr: 21000830 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-04 960 DATE: January 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The probative medical opinion evidence weighs against a finding that any currently-diagnosed acquired psychiatric disorder, to include PTSD, was incurred in or caused by the Veteran’s active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1975 to March 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board remanded this matter in December 2018 and June 2020 for additional development. As the actions specified in the most recent remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA’s duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). A diagnosis of PTSD must comply with the criteria set forth in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Id.; 38 C.F.R. § 4.125(a). The Veteran’s claim is predicated, in part, on a reported history of an in-service personal assault. Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events alleged by the Veteran. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013); Patton v. West, 12 Vet. App. 272 (1999). In these cases, the Veteran’s claimed stressors must be corroborated by evidence other than the claimant’s own testimony or the diagnosis of PTSD itself. 38 C.F.R. § 3.304 (f)(5); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The occurrence of an event alleged as the stressor upon which a PTSD diagnosis is based, as opposed to the sufficiency of the alleged event to cause PTSD, is an adjudicative determination, not a medical determination. See Zarycki v. Brown, 6 Vet. App. 91 (1993). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, which he contends had its onset during military service. Although the Veteran filed his claim for service connection for PTSD, the record contains several mental health diagnoses and the Board has therefore expanded the claim to encompass all currently-diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The record contains several statements by the Veteran describing the in-service stressors that form the basis for his claim for service connection. First, in an October 1994 statement, the Veteran alleged that he developed symptoms of PTSD after a frightening accident during service in which he lost control of and overturned a Gama Goat all-terrain vehicle; he stated that the accident was not his fault because he had not been given proper training on driving the Gama Goat. The Veteran stated that ever since the accident, he has suffered from sleep impairment, nervousness, and fear of driving or being a passenger in a vehicle. The Veteran also stated that following this incident, he began going absent without leave (AWOL) because of psychological issues stemming from the trauma of the accident. In a December 1995 statement, the Veteran alleged that he was forced by military superiors to accept an “under honorable conditions” discharge from the military in order to avoid a Court Martial for the Gama Goat crash. Next, in a July 1996 statement, the Veteran contended that his symptoms of PTSD began following a sexual assault perpetrated by two fellow service members on or about June 24, 1975. In August 2014, the Veteran stated that he began going AWOL after the MST because he did not want to be near the perpetrators and he was too afraid to report what had happened. He had stated that this event made him feel fear, guilt, shame, unable to trust anyone, and has impacted his relationships. At the April 2017 Board hearing, the Veteran again stated that the MST caused him to start going AWOL on a regular basis. He testified that because of the AWOLs, he was forced into accepting a general discharge to “leave the military under good graces.” In the July 1996 statement, the Veteran also described an incident that occurred in October 1975 in which he was driving in a convoy of trucks when they came under fire upon entering the artillery range. He stated that they were forced to take cover until the shooting ceased. He stated that he still suffers nightmares about this incident and any loud noise leaves him nervous and jumpy. The Board has reviewed the Veteran’s service treatment records, to include his November 1974 enlistment and March 1976 separation examinations. On both examinations, the Veteran denied a history of nervous trouble, depression, excessive worry, or any other psychiatric condition and no psychiatric abnormalities were found on clinical evaluation. Moreover, the service treatment records do not show that the Veteran was ever treated for any psychiatric complaints or symptoms during service. An entry from February 1976 details that the Veteran was in an accident in a Gama Goat and suffered bruising to the right thigh and left eye. Military personnel records show that the Veteran went AWOL on at least eight separate occasions between July 1975 and February 1976. He was convicted by summary court martial for two charges of AWOL that occurred in October 1975 and November 1975 and was punished by forfeiture of pay and restrictions on movements. In November 1975 and January 1976, the Veteran was counseled concerning his substandard performance and conduct and warned that further misconduct would result in recommendation for discharge. In March 1976, the Veteran received a general discharge from service under honorable conditions for substandard behavior. Thereafter, the record is silent for psychiatric treatment or complaint until July 1990 when the Veteran sought treatment at VA for depression and suicidal ideation. At the initial intake psychiatric evaluation, he was diagnosed with major depressive episode and antisocial personality disorder which was attributed to the Veteran facing severe legal problems, a pending trial, and possible incarceration. One week later, he presented again for psychiatric treatment and was hospitalized for five days. He underwent another psychiatric evaluation and was diagnosed with adjustment disorder with anxiety and mixed personality disorder with histrionic and borderline traits due to feeling overwhelmed by current events (noted as family and legal stressors). He reported a vague history of receiving psychiatric treatment as a child and reported that he always had trouble adjusting since childhood. The Veteran related to the examining physician that he was discharged from the military because he had overturned a truck while drinking. Notably, at the time of this hospitalization, the Veteran endorsed several stressors, which included his ex-wife recently filing charges against him alleging he had sexually abused his stepson; his niece and nephew dying by fire on Christmas Day; his two sons being taken by social services and reportedly being placed for adoption; being unable to see his son from a different marriage; and his current girlfriend being pregnant. He also reported that he was forced by the military to resign after he overturned a truck and stated that the accident was not his fault and was caused by a sandstorm. In October 2012, the Veteran began receiving regular mental health treatment from VA. At a mental health consultation, he reported to the VA social worker that he had been sexually assaulted by two men at knifepoint at the age of 11. He also reported that he was sexually assaulted while in the military. He was diagnosed with anxiety and depression. In July 2013, the Veteran was diagnosed with PTSD by a VA psychiatrist who noted that the Veteran “reports two sexual traumas in his life, one at 11 years old, and again in the military, which have resulted in his ‘anger problem’ and symptoms of PTSD.” The Veteran underwent a VA PTSD examination in September 2014. Upon examination, he was diagnosed with PTSD and antisocial personality disorder. He reported to the examiner that he had behavioral issues as a child, and that prior to joining the military, he was expelled from school for truancy, and arrested for breaking and entering, driving under the influence, and unlawful operation of a vehicle. He reported that he was sexually assaulted by two men at gunpoint at the age of 11 and that this event was the impetus for him joining the military. He denied any mental health issues or treatment prior to or during military service. The Veteran reported that during service he was sexually assaulted by two fellow servicemembers and that after this stressor event, he began going AWOL which resulted in his premature discharge from service. The VA examiner found that this stressor met the criteria to support a diagnosis of PTSD, however, she remarked that “there are no markers present in the claims file” to substantiate the claim. Although the VA examiner determined that the Veteran met the full DSM-5 criteria for a diagnosis of PTSD, she concluded that PTSD is less likely than not related to the singular incident of military sexual trauma that reportedly occurred. She opined that PTSD is instead more likely than not related to multiple traumatic experiences which have occurred throughout the Veteran’s lifetime, including being in prison for 12 years from approximately 1991 to 2002 and being sexually assaulted at the age of 11. She also noted his history of behavioral problems as a teenager to conclude that the Veteran’s current mental health problems are multifactorial and chronic. In making this determination, the VA examiner noted that the Veteran has exhibited a long-standing pattern of antisocial personality beginning prior to his military service and continuing throughout his lifetime. This personality disorder is characterized by failure to conform to social norms, deceitfulness, impulsivity, and irresponsibility. It is equally as likely that the maladaptive behavioral patterns which led to his military discharge were related to his personality disorder and not to any one traumatic event that he reported occurred. Because the September 2014 VA examiner did not adequately consider the Veteran’s instances of AWOL during service, the Board found the medical opinion to be insufficient and remanded the claim to obtain a new VA medical opinion. Another VA medical opinion was obtained in a VA psychologist in August 2019. Upon review of the Veteran’s claims file, the examiner concluded that the Veteran’s reported in-service stressors do not meet the criteria for a diagnosis of PTSD. The examiner explained that post-military treatment records identify multiple traumatic events throughout the Veteran’s life, including a sexual assault at the age of 11, post-military period of incarceration for 12 years, and family tragedies. The examiner remarked that these events meet the criteria for a current diagnosis of PTSD and are more likely than not etiologically related to his current diagnosis. With regard to the Veteran’s diagnosis of antisocial personality disorder, the VA examiner concluded it was less likely than not incurred in or caused by military service as a personality disorder is a pattern of behavior that is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood. A personality disorder is considered a lifelong characterological deficit that is not recognized by VA as a compensable mental illness. Additionally, the examiner determined that it is less likely than not that the Veteran’s antisocial personality disorder was permanently aggravated by his military service as a personality disorder is pervasive, inflexible, and stable across time and domains. In making her determinations, the VA examiner individually addressed the Veteran’s three reported in-service stressors and concluded that the incidents either cannot be verified by the available evidence and/or do not meet the diagnostic standards for a diagnosis of PTSD. First, with regard to the artillery range incident, the examiner noted that there is no evidence in the available records that such an event took place, and the Veteran’s statements with regard to the incident have been inconsistent. Next, the examiner addressed the reported turnover accident of the Gama Goat. However, she noted that the service treatment records only note minor injuries, such as bruising on his right thigh and some bruising and swelling on his left eye, as a result of this vehicle accident. No significant medical intervention was required. Therefore, the examiner concluded that this event does not meet the threshold of “actual or threatened death, serious injury, or sexual violence” required for a diagnosis of PTSD. Moreover, although the Veteran has claimed, at times, that the accident was serious enough to lead to his early discharge from service, the examiner observed that “military personnel records illustrate a pattern of behavioral and disciplinary problems throughout the Veteran’s time in service which, cumulatively, resulted in an early discharge due to substandard performance. Therefore, the vehicle accident was simply the last of many infractions.” Finally, with regard to the reported MST, the examiner noted several inconsistencies in the Veteran’s reports of the incident, including in the time frame and manner of the assault, as well as the Veteran’s own reported response to it. Moreover, she noted that the service treatment records and personnel records are silent as to any behavioral markers of MST, to include the Veteran’s multiple periods of AWOL. In this regard, the examiner agreed with the conclusion of the September 2014 VA examiner that the Veteran’s substandard performance in the military was part of a pattern of behavior consistent with antisocial personality disorder that began prior to him entering military service, was exhibited throughout his time in service, and continued after his discharge from the military. Therefore, the examiner found that it is less likely than not that the Veteran’s multiple periods of AWOL and misconduct during service represented a marker of behavior indicating he experienced any type of trauma during service. In August 2020, the same VA examiner provided an addendum opinion to address the etiology of the diagnoses of depression and anxiety noted in the Veteran’s VA treatment records. The examiner explained that per the DSM-5, depressive and/or anxiety disorders are not official psychiatric diagnoses, but are often used by providers in a treatment environment to note the major symptoms a patient is reporting and to allow additional time to gather enough information to make an informed diagnosis. She further explained that comorbidity of depression and anxiety symptoms with a diagnosis of PTSD is very common. Finally, she noted that it is common for the frequency, intensity, and duration of mental health symptoms to fluctuate over time and/or in response to treatment. Therefore, a patient who has previously been diagnosed with a condition such as PTSD may meet with a new provider and not endorse as many symptoms as he had in the past and the provider will then simply note a generic diagnosis such as “depressive disorder” or “anxiety disorder.” Therefore, the examiner concluded that the symptoms and pathology that has, on occasion throughout the Veteran’s treatment history, been described as a “depressive and/or anxiety disorder” is the same symptoms/pathology that has previously been diagnosed as PTSD and antisocial personality disorder and do not represent a new or separate condition requiring evaluation. As such, the examiner stated that her prior medical opinion rendered in August 2019 remains current and unchanged. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding that service connection for an acquired psychiatric disorder, to include PTSD, is warranted. In making this determination, the Board has placed great probative weight on the August 2019 VA medical opinion and the August 2020 follow-up opinion. The VA examiner provided fully-articulated conclusion adequately supported by medical rationale and citations to the Veteran’s claims file and medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (holding that conclusions that are factually accurate, fully articulated, and contain sound reasoning contribute to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that the physician’s access to the claims folder and the Veteran’s history, and the thoroughness and detail of the opinion, are important factors for assessing the probative value of a medical opinion). For these reasons, the Board finds the above medical opinions to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran’s acquired psychiatric disorder had its onset in military service or is otherwise etiologically related to that service. Given the foregoing, the Board accepts the medical opinion of the VA examiner, who concluded that (1) the Veteran’s reported in-service stressors are not sufficient to meet the diagnostic criteria for PTSD; (2) the Veteran’s misconduct and early discharge from service represented a lifelong pattern of behavior consistent with his diagnosis of antisocial personality disorder; and (3) the Veteran’s current diagnosis of PTSD is more likely than not etiologically related to multiple nonservice-related stressors in the Veteran’s life that occurred both prior to and after military service. The Board also finds it significant that neither the Veteran nor his representative have presented or identified any contrary medical evidence or opinion to provide support for the claim for service connection for an acquired psychiatric disorder. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). However, in reaching this conclusion, the Board would like to acknowledge the July 2013 VA treatment record in which a VA psychiatrist noted that the Veteran “reports two sexual traumas in his life, one at 11 years old, and again in the military, which have resulted in his ‘anger problem’ and symptoms of PTSD.” Although this medical record seems to attribute the Veteran’s PTSD to his reported MST, it is clear from a review of the record that this conclusion was rendered based solely on a history provided by the Veteran and was not accompanied by any medical rationale. Therefore, the Board has assigned this medical record little probative weight with regard to establishing a nexus to service. Finally, the Board acknowledges the many statements made by the Veteran that he believes his psychiatric symptoms began in service and are related to his reported stressor events. In this regard, the Board notes that the Veteran is competent to report on matters observed or within his personal knowledge, such as his symptoms or medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the etiology of his condition is a complex medical question that is not within the competency of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board also notes that the Veteran’s lay statements with regard to his in-service stressors, his reasons for going AWOL, and the nature of his discharge from service have been inconsistent and are in conflict with the objective evidence of record, such as service personnel records and post-service treatment records. Therefore, any opinion by the Veteran regarding the etiology of his acquired psychiatric disorder is not competent evidence, and any such lay assertions are outweighed by the most probative medical evidence of record. Accordingly, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for any currently-diagnosed acquired psychiatric disorder. Because the evidence fails to establish that the Veteran’s current psychiatric disorder, to include PTSD, was incurred in or caused by military service, the Veteran’s claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the Veteran’s claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate Counsel 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.