Citation Nr: 21001588 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-46 737A DATE: January 11, 2021 ORDER Entitlement to service connection for a psychiatric disability, to include depression and PTSD is denied. FINDING OF FACT The Veteran does not have a psychiatric disability related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2020. The claim was remanded for additional development, to include obtaining additional medical records. Additional medical records have been added to the file. Thus, the Board finds that the AOJ substantially complied with the February 2020 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran claims he has a PTSD diagnosis related to service. Specifically, he alleges confrontations with Vietcong, while serving in Vietnam, resulted in a PTSD diagnosis. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current disability is related to service. Therefore, service connection is not warranted. 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). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (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). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In PTSD claims that are not combat-related, do not pertain to the fear of hostile military or terrorist activity, nor related to a Veteran’s status as a prisoner of war, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by “credible supporting evidence.” 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128, 142 (1997). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The enumerated diseases include psychoses, but do not include PTSD or any other psychiatric or mental disorder that has been diagnosed in this case. As such, there is no presumption of service connection for any of the conditions at issue. See 38 C.F.R. § 3.384. 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, the benefit of the doubt is afforded the claimant. Turning to the evidence of record, service treatment records (STRs) reflected a February 1969 psychiatric consultation, which indicated the Veteran had elements of paranoid personality; however, a diagnosis was not warranted as it was noted that the symptoms usually occur with alcohol consumption. The psychologist found no evidence of any psychopathology of a psychotic or neurotic nature. The May 1969 separation examination revealed normal clinical findings for the psychiatric system. Post service, in February 2011 treatment records, a discharge summary from the attending physician indicated the Veteran was diagnosed with depression and alcohol abuse. In June 2011 treatment records a nurse practitioner noted an assessment or diagnosis for alcohol dependence and PTSD. An August 2011 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with alcohol abuse, depressive disorder, and a personality disorder. The psychologist found the Veteran did not meet the criteria for a PTSD diagnosis. The noted stressors included children in a village fighting over a bologna sandwich he had thrown down, firing on Vietcong in a tunnel in Cambodia, and being fired at while on river patrol. He underwent psychological testing. The psychologist noted the Veteran’s “tendency to endorse extreme symptomology and his failure or refusal to elaborate on his responses cast some doubt on the validity of the resulting scores.” No VA opinion was rendered. An April 2013 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with alcohol abuse, depressive disorder, and antisocial personality. The neuropsychologist found the Veteran did not meet the criteria for a PTSD diagnosis. The noted stressors included taking arms from the Vietcong with intermittent fire fights and hearing about the attack of a children’s home. Psychological testing indicated extreme exaggeration of psychological distress and symptoms to the point where the measure was not reliable and valid for interpretation. No VA opinion was rendered. In June 2014 VA treatment records, a psychiatrist diagnosed the Veteran with PTSD and alcohol abuse under the DSM-4 criteria. In a May 2015 statement, the Veteran alleged another soldier told him the Vietcong had killed many Vietnamese doctors, nurses, and kids, the Veteran had met while cleaning a health facility in Quang Yen. He alleged the incident occurred in September 1967. An August 2016 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with other specified depression, alcohol use disorder in partial remission, and unspecified personality disorder. The psychologist found the Veteran did not meet the criteria for a PTSD diagnosis under the DSM-5 criteria. The noted stressors included an incident where, while serving as a boatswain’s mate on the USS Wilhoite, the ship intercepted a North Vietnamese trawler and captured a large supply of weapons and ammunition. The second stressor involved the Veteran learning that the hospital he volunteered with was attacked and several staff members were killed. The psychologist opined the claimed condition was less likely than not related to service. It was reasoned, “the Veteran was exposed to combat stressors and he was in fear for his life during his service on the USS Wilhoite in July 1967. His exposure to trauma meets Criterion A for a diagnosis of PTSD.” It was noted, an individual reaction to trauma may meet the criteria for Acute Stress Disorder and symptoms of PTSD, which usually begins within the first three months after exposure to trauma. However, a February 1969 psychiatric examination indicated no evidence of any psychopathology of a psychotic or neurotic nature. Features of paranoid personality disorder were noted which were exacerbated by alcohol intoxication. There were no observations of symptoms related to Acute Stress Disorder or PTSD. Furthermore, the Veteran was not seen for mental health treatment until February 2011. Although, he reported symptoms of PTSD, the results of psychological testing did not support a diagnosis of PTSD. Specifically, the psychologist noted, An Initial C&P Examination for PTSD was completed on August 15, 2011. The Clinician Administered PTSD Scale was administered, and the veteran reported symptoms of PTSD which included intrusive recollections, defensive avoidance behaviors, and anxious hyperarousal. However, the Miller Forensic Assessment of Symptoms Test was administered as a symptom validity measure. The Veteran’s responses contained a higher number of atypical symptoms than would be true of authentic psychiatric patients. Possible over-reporting or exaggeration of PTSD symptoms was suggested, and a diagnosis of PTSD could not be based upon the results. An Initial C&P examination for PTSD was completed on April 24, 2013. He reported intrusive memories and disturbing dreams, he did not report significant avoidance behaviors. He reported irritability, sleep disturbance, and hypervigilance. However, the frequency and intensity of his symptoms did not meet the full DSM-4 criteria for a diagnosis of PTSD. He was administered the Personality Assessment Inventory to assess his psychological functioning. He endorsed a variety of improbable symptoms unrelated to PTSD and exaggeration of symptoms could not be ruled out. At the time of the current evaluation, the Veteran was administered the MMPI-2-RF to assess his psychological functioning. The validity scales results indicated possible over-reporting and exaggeration of symptoms. The Veteran reported a variety of symptoms unrelated to PTSD. The overall results were considered invalid and no diagnostic impression could be based upon the clinical scales profile. The psychologist further found the Veteran’s diagnosis of depressive disorder is attributed to psychosocial stressors and lack of social supports, which occurred subsequent to his military service. In a September 2016 statement, the Veteran alleged his depression is related to his PTSD. In March 2019 a VA treatment record assessment noted PTSD. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran does not have a psychiatric disability related to service. Initially, the Board notes the Veteran’s service personnel records show that he had combat service in Vietnam as he was awarded the Navy Unit Commendation Ribbon in August 1967. The Navy Unit Commendation Ribbon, established by order of the Secretary of the Navy in December 1944, is awarded to a Marine or Navy unit (or to a Coast Guard unit that is directly attached, or assigned, to a Navy or Marine unit) in recognition of outstanding heroism in action against the enemy. See SECNAVINST 1650 1H, Navy and Marine Corps Awards Manual. As the evidence reflects an award of the Navy Unit Commendation Ribbon, the Board concludes the Veteran engaged in combat with the enemy. Thus, he is deemed to have had combat service. See 38 U.S.C. § 1154 (b); see 38 C.F.R. § 3.304 (f)(2). However, the Board concludes that the Veteran does not have a current diagnosis of PTSD related to his in-service stressors. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The first element for service connection, for either PTSD or any other psychiatric condition, is a diagnosis that comports with the DSM-5. 38 C.F.R. § 4.125(a). The competent medical evidence of record does not establish a PTSD diagnosis related to combat. In this regard the Board finds the August 2011, April 2013, and August 2016 VA examinations probative. The Board acknowledges post service treatment records to include the June 2011 and March 2019 VA treatment records, indicated the Veteran manifested PTSD symptoms. However, the records did not discuss the criteria that was used in order to make such assessment, to include whether such was in accordance with the DSM-5. Although the June 2014 VA treatment records reflect a psychiatrist diagnosing the Veteran with PTSD, the psychiatrist did not identify if the diagnosis was based on an in-service stressor. Additionally, the diagnosis was not based on the DSM-5 criteria as required by 38 C.F.R. § 4.125(a). To the contrary the August 2011, April 2013, and August 2016 VA examinations all acknowledged the Veteran’s alleged in-service stressors in assessing the DSM-5 criteria. Furthermore, after administration of the Miller Forensic Assessment of Symptoms Test and Personality Assessment Inventory, possible over-reporting or exaggeration of PTSD symptoms was suggested, and a diagnosis of PTSD could not be based upon the results. As such, the Board concludes that the Veteran’s post service diagnosis of PTSD does not satisfy the criteria of 38 C.F.R. § 3.304(f). While the Veteran has been diagnosed with specified depression and depressive disorder under DSM-5; these diagnoses have not been linked to active duty service. In order to attain service connection for this impairment, the evidence of record must establish a connection between the Veteran’s mental health condition and an in-service injury, event, or disease. In this regard, the Board finds the August 2016 VA opinion which acknowledges the testing in the August 2011 and April 2013 VA examinations, is the most probative evidence of record. The opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. The examiner found the depression was not related to service but was in fact attributed to psychosocial stressors and lack of social supports which occurred subsequent to his military service. There are no credible and competent medical opinions or lay evidence that purports to relate a current acquired psychiatric disorder to service. The only evidence weighing in favor of the claim comes from his assertions that his psychiatric disability is related to service. While the Veteran is competent to report some symptoms of a psychiatric disability experienced at any time, he is not competent to opine on whether there is a link between the current psychiatric disability and the claimed in-service stressor. Such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the development of a psychiatric disability, and knowledge of the multiple potential etiologies of his psychiatric disability, which he is not shown to possess. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see also Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran’s lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue). The Veteran has not shown he has the requisite medical expertise to render an opinion as to whether the Veteran’s current psychiatric disability is related to service. Thus, his statements purporting to link the current psychiatric disability to service are assigned no probative value. Additionally, the Veteran was not treated for a psychiatric condition until 2011, 42 years post service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). For all the reasons set forth above, the evidence fails to show that a psychiatric disability is related to service. As the preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection is not warranted for a psychiatric disability. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. [CONTINUED ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.