Citation Nr: 21001764 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 09-34 999 DATE: January 11, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a depressive disorder, an anxiety disorder, a personality disorder, an adjustment disorder, and a mood disorder is denied. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran’s current acquired psychiatric disorder is not attributable to incident or event of his period of 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. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to July 1972. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2011 and October 2014, the Veteran testified at a hearing before the undersigned in Washington, D.C. Transcripts of the hearings are included in the electronic case file. The Board remanded the appeal in February 2012 and December 2015 for additional development. In September 2016, the Board denied the Veteran’s claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted the parties’ Joint Motion for Remand (Joint Motion) vacating the Board’s September 2016 decision and remanded the appeal to the Board. The parties agreed a February 2016 medical opinion relied upon by the Board was inadequate and that the Board failed to ensure compliance with the duty to assist in obtaining relevant and identified medical records. The Board remanded the appeal in September 2017 for the RO to obtain any outstanding pertinent records with the electronic claims file and to schedule the Veteran for VA examination to determine the etiology of the claimed psychiatric disorder. In March 2018, the Board again denied the Veteran’s claim. The Veteran appealed the decision to the Court. In December 2018, the Court granted the parties’ Joint Motion vacating the Board’s March 2018 decision and remanded the appeal to the Board. Specifically, the parties agreed that in the March 2018 decision, the Board erred when it did not ensure substantial compliance with the May 2017 Joint Motion and subsequent September 2017 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The parties agreed that while the Veteran re-submitted an authorization to release records for the Washington, D.C. Department of Mental Health, there was no indication in the record that the RO attempted to obtain these records. The parties also noted that the records of a different K.A., who was not this Veteran, were not removed from the Veteran’s claims file. The Board remanded the issue in August 2019. The Board again requested that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for an acquired psychiatric disorder whose records have not been obtained, to specifically include copies of complete treatment records for this Veteran from the Washington, D.C. Department of Mental Health. The Veteran was advised to sign the appropriate authorization forms. Attempts were made to obtain identified records of treatment. Thus, the development has been completed and the case has been returned to the Board for appellate consideration. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a depressive disorder, an anxiety disorder, a personality disorder, an adjustment disorder, and a mood disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (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. 38 C.F.R. § 3.304(f). If a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); see 38 C.F.R. § 3.304(f)(5). Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crises centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5). VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that he has an acquired psychiatric disorder, to include PTSD that onset due to multiple stressors from his period of service as a member of Company B, 1st Battalion, 6th Marine Regiment, 2d Marine Division. He reports an unnamed fellow service member was killed in 1970 while on leave from service. However, the Veteran admitted to not being with the service member when he was killed but knew him from high school. He also alleged that while on temporary assignment in Vieques, Puerto Rico, he was injured in a truck explosion where he was knocked out of the back of the truck. He states that he “blacked out” and woke up in pain, along with several abrasions and bruises. Finally, he alleges that he was a victim of an in-service sexual assault. The record indicates that the Veteran has not been credible in various accounts of his service. As reported by the Social Security Administration in a September 2009 report, the Veteran claimed during mental health treatment in January 2009 that he had “memories of Vietnam,” and stated that he was evacuating villagers from a location, when an explosion occurred. He reported to the examiner that he was having recollections of the incident, and that he was “getting bad dreams.” However, the Veteran’s report of separation from the Armed Forces (DD 214) indicates that he was not in Vietnam and had no foreign service. Service treatment records contain no documentation of complaints of or treatment for an acquired psychiatric disorder. Service personnel records document that in December 1970, the Veteran, without proper authority, failed to be at an appointed place at the prescribed time and was disciplined through non-judicial punishment. Post service treatment records reflect continuing treatment for various psychiatric disorders. A July 2002 VA outpatient treatment note documents the Veteran’s report of alcohol and drug abuse. He stated that he started drinking as a teenager and regularly consumed alcohol from 1970 until May 2002. He also admitted to using cocaine since 1970, with his last use in July 2002, and marijuana in high school, with his last use in 1970. He denied any prior physical or, in contradiction of his current allegation, sexual abuse. Upon psychiatric testing, the Veteran reported being treated in a hospital for psychological and/or emotional problems. He admitted to experiencing psychological or emotional problems for four days within the past thirty days. The VA psychiatric technician noted that the Veteran was hospitalized for approximately three days in July 2002, for psychosis and homicidal ideations. January 2003 VA outpatient treatment records reflect that the Veteran received inpatient psychiatric treatment for diagnosed alcohol and cocaine dependence and substance induced mood disorder. A June 2003 inpatient treatment discharge note reflects diagnoses of alcohol dependence; polydrug dependence; and depression, not otherwise specified (NOS). An October 2003 Vet Center intake evaluation report documents the Veteran’s allegation that during his military service, he was involved in an explosion on Roosevelt Ridge in Vieques, Puerto Rico. He alleged that the explosion caused injury to his knees. He indicated that he had sleep impairment, isolative behavior, anxiety, anger, and difficulty with persons in positions of authority. He also reported an episode of adult sexual abuse while in service by a fellow soldier. On mental status examination, the diagnoses were polysubstance-related disorder, partial remission; rule out (R/O) PTSD; and sexual abuse of an adult. October and November 2003 Vet Center records reflect diagnoses of depression and anxiety. A November 2003 VA psychiatric consultation reflects the Veteran’s chief complaint of depression. He complained of isolative behavior, lack of interest and energy, sleep impairment, and some fleeing suicidal thoughts. He reported being on the island of Vieques in Puerto Rico when an accident occurred. He provided no additional information. On mental status testing, the VA psychiatrist diagnosed depressive disorder, not otherwise specified (NOS); polydrug dependence in remission; and personality disorder with antisocial traits. In August 2004, the Veteran returned to his local VA outpatient treatment facility for an outpatient psychiatric consultation. He complained of suicidal ideation with plans to jump off a bridge. He also admitted to homicidal ideation towards unspecified persons without plan. On mental status testing, the diagnoses were depression NOS; rule out substance-induced mood disorder (SIMD); alcohol dependence; cocaine dependence; and a history of antisocial traits. He was admitted to the hospital for suicidal ideation with plan and no support system. While receiving treatment, the Veteran alleged flashback episodes and nightmares relating to his participation in alleged combat conflicts in Panama and Cuba during his military service. However, the Veteran’s military personnel records contradict the Veteran’s account because combat, foreign and/or sea service is not demonstrated in the Veteran’s report of separation from the Armed Forces. He was hospitalized for seven days. Upon discharge, he was diagnosed with SIMD, alcohol dependence and cocaine dependence. In December 2006, the Veteran was again hospitalized at a VA facility for psychiatric problems after developing homicidal and suicidal ideations. He alleged that his relationship with his girlfriend caused his ideations, as well as feelings of depression and anger. On mental status examination, the VA psychiatrist diagnosed him with adjustment disorder with mixed emotional features, R/O substance induced mood disorder, alcohol dependence, and cocaine abuse. During his hospitalization, he was detoxified and placed on medication for sleep, depression, anxiety, and pain. In January 2007, the Veteran was admitted to a Substance Abuse Program at his local VA outpatient treatment facility. A February 2008 VA mental health evaluation report documents the Veteran’s allegation of experiencing combat-related trauma during his military service. He again misrepresented his military service because he stated that he received live fire and was involved in bombing raids. He also reported that he was thrown from a truck when a bomb hit the road. On mental status testing, the VA psychologist diagnosed the Veteran with depression, NOS; PTSD (provisional); cocaine dependence in remission; and alcohol dependence in remission. In a September 2009 private psychological report, a private physician diagnosed the Veteran with PTSD; mood disorder, NOS; and learning disorder, NOS. The physician explained that the PTSD diagnosis is based on a trauma while in service and the loss of his wife and sons as a result of the Veteran’s substance abuse behavior. In a September 2010 report of VA initial evaluation for PTSD, the psychologist noted that based on her review of the Veteran’s claims file, clinical interview, and clinical experience and expertise, the Veteran’s claimed PTSD was not caused by or a result of the in-service truck accident. She observed that although the Veteran had been diagnosed with PTSD at the VA Medical Center, there was no evidence of record indicating that the diagnosis of PTSD was based on the claimed in-service stressors, i.e., truck accident and possible military sexual trauma. The February 2016 report of VA initial evaluation for PTSD documents diagnoses of unspecified anxiety disorder; alcohol use disorder, in sustained remission and stimulant use disorder (cocaine), in sustained remission. However, the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The Veteran reported serving in the Marine Corps from 1970 – 1972. He did not serve in a war zone. He served aboard a ship on a Caribbean cruise, in Cuba on temporary duty and in Puerto Rico on a training exercise. He reported that he was thrown from the back of a truck during the training exercise and was placed on light duty for the remainder of the exercise. The Veteran indicated that he got in trouble upon his return to Camp Lejeune because his superior officers thought he was “slacking.” As a result, he was assigned undesirable duties that made him hostile and angry. He was sent to a “motivational unit” and his resentment increased. He reported that he was hostile to people in authority. He reported that on one occasion he was walking back to base after a night out drinking. The Veteran alleged that a car stopped to take him the rest of the way back. The driver of the car was a superior officer who took him to his house, drugged him and sexually assaulted him. The Veteran alleged that he was embarrassed and ashamed about the incident and never told anyone about it. The psychologist noted discrepancies in report of this sexual trauma from previous reports. Previously, the Veteran had reported that he was not sexually assaulted or abused and that “inappropriate touching” was the extent of the incident. He held numerous jobs after service including as a postal worker for 15 years and self-employment after a period of incarceration. The psychologist documented that the Veteran did not meet the full criteria for a PTSD diagnosis and also explained that the Veteran had completed testing which resulted in invalid clinical scales due to extremely negative responses, a pattern that was previously observed and had resulted in invalidated test results. The psychologist opined that the acquired psychiatric disorder was less likely than not incurred in or caused by the Veteran’s claimed in-service injury, event or illness. The psychologist explained that there was insufficient information to link anxiety or alcohol and cocaine use disorders to the Veteran’s military service. Further, the psychologist noted that there was no information to indicate that the anxiety, alcohol or cocaine use disorders began during service, were chronically worsened during service or were related to any incident of service. Further there was no evidence of a manifestation of psychosis within one year of discharge from service. The psychologist reiterated there was no diagnosis of PTSD and noted the claimed personal assault was not consistently reported and could not be supported without evidence. The psychologist noted that previous diagnoses varied in the medical record but found that any previous diagnosis of PTSD did not appear supported by structured interview or psychological testing. The September 2017 report of VA evaluation for PTSD documents diagnoses of unspecified depressive disorder, unspecified anxiety disorder and alcohol use disorder. However, the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The Veteran reported that while visiting his grandmother one summer during his childhood, he was molested by a teenager who lived in his grandmother’s neighborhood. After that assault, he did not go back to visit his grandmother at her house until he was in high school. He reported no other abuse prior to military service. He reported that during basic training he learned of the death of a childhood friend who was also going through basic training. He reported that he was responsible for packing up his friend’s belongings. The Veteran indicated that his performance and motivation worsened after learning of his friend’s death. As a result, he was sent to a motivational platoon. He alleged that he performed well and qualified as a machine gunner. His first duty assignment after basic training was Camp Lejeune. His duties included performing guard duty. He received temporary duty orders to Guantanamo, Cuba. In Cuba he built bunkers and performed guard, tower and perimeter duty. His service on temporary duty was devoid of any problems. While the Veteran repeated his assertion that he had been sexually assaulted in service, the psychologist noted discrepancies in report of this sexual trauma from previous reports. Previously, the Veteran had reported that he was not sexually assaulted or abused and that “inappropriate touching” was the extent of the incident. As directly relevant to the deficiencies cited by the parties before the Court, the psychologist concluded that the Veteran’s symptoms did not meet the criteria in the DSM-IV or in the DSM 5 for a PTSD diagnosis. However, the psychologist found that the Veteran met the DSM-IV and DSM 5 criteria for diagnoses of depressive disorder, anxiety disorder and alcohol dependence. The psychologist opined that it was less likely than not that the diagnosed depressive disorder, anxiety disorder and alcohol dependence were incurred in or caused by the claimed in-service injury, event or illness. The psychologist explained that review of the medical evidence of record did not show any mental health symptoms or treatment during a period of service and did not show any behavioral indicators of any mental disorders. The psychologist reiterated no diagnosis of PTSD was found based on the structured clinical interviews that were conducted for three PTSD examinations. Additionally, the psychologist noted that psychological testing showed extreme exaggeration of symptoms and probable malingering and opined based on review of the records that the Veteran has attempted to exaggerate, elaborate and/or fabricate elements of his history to increase the likelihood of being awarded service connection for PTSD. Regardless of the Veteran’s claimed stressors, his claim for PTSD must be denied because the preponderance of the evidence reflects that he does not have a diagnosis of PTSD based on any service-related stressor. Specifically, the psychologist who conducted the February 2016 VA psychiatric examination concluded that the Veteran did not meet full DSM-V PTSD criteria. The psychologist explained that any previous diagnosis of PTSD did not appear supported by structured interview or psychological testing. The psychologist also noted that that the Veteran had completed testing which resulted in invalid clinical scales due to extremely negative responses, a pattern that was previously observed and had resulted in invalidated test results. The September 2010 VA examination confirms that the Veteran does not meet criteria for PTSD. This matter was remanded from the Court by joint motion for the Board to schedule the Veteran for VA examination to evaluate his claimed psychiatric disorder applying the DSM-IV criteria only. The September 2017 report of VA examination reflects that the Veteran’s symptoms did not meet the criteria in the DSM-IV or in the DSM-V for a PTSD diagnosis. While non-medically trained veterans are competent to testify as to matters of diagnosis and etiology subject to lay observation, the question of whether a Veteran has PTSD based on a claimed in-service stressor is the type of medical issue as to an internal, non-observable process as to which lay testimony is not competent. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); 38 C.F.R. § 3.304(f) (specifically requiring medical evidence diagnosing PTSD). Consequently, the Veteran’s statements as to whether he has PTSD are not competent. The more probative evidence establishes that the Veteran does not have PTSD. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, though the Veteran has other current acquired psychiatric disorders, the preponderance of the evidence is against a finding of a linkage between the onset of those current acquired psychiatric disorders and a period of service. Rather, the evidence shows that the Veteran’s current acquired psychiatric disorders had no relationship to service. (See September 2017 VA examination report). This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. While a September 2011 statement from the Veteran’s treating psychiatrist indicates that his “mental difficulties are directly related to his experiences in the military and therefore service-connected,” the psychiatrist provided no additional support, i.e., no link to a specific incident or injury that caused the psychiatric disorder for this bare conclusion. The Board affords this opinion little probative value. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (finding in part that the Board had properly discounted the probative value of a physician’s opinion that had overlooked key pertinent medical evidence, and that the lack of a reasoned medical explanation is a significant factor in assessing the value of a medical opinion). Here, the more probative opinion is that of the VA examiner in September 2017. The VA psychologist considered the Veteran’s assertions, reviewed the Veteran’s entire claims file and concluded that his acquired psychiatric disorders did not onset due to event or incident of his military service. The Board has the authority to and affords more probative weight to the opinion of the VA examiner offered in September 2017. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As to any assertion that the psychologist’s assessments and conclusions were based on an inaccurate factual background based on review of misfiled records not pertaining to the Veteran, the Board notes that assessments and conclusions were based on the Veteran’s reported history obtained during the examinations. The Veteran asserts that his psychiatric disorder onset due to traumatic events experienced during his service while stationed at Camp Lejeune and temporary duty stations, including Vieques, Puerto Rico. Review of the Veteran’s personnel file show that he served in the Marine Corps and was stationed at Camp Lejeune during his period of service. An October 2015 letter from the Department of the Navy records custodian reflects that potential records of his alleged service at Vieques, Puerto Rico were destroyed in 1996. Documented psychiatric diagnoses based on the Veteran’s reported history, included unspecified depressive disorder, unspecified anxiety disorder, alcohol use disorder and stimulant use disorder (cocaine). There is no indication in the record that the examiner’s assessments and conclusions were based on the factual history of another individual other than the Veteran. Personality disorders are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. § 3.303(c)). The Veteran is not competent to link his acquired psychiatric disorders to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is competent to report events he experienced during his period of service. However, he is a lay person and is not competent to establish that his current acquired psychiatric disorders onset as a result thereof. The Veteran is not competent to offer opinion as to etiology of any current acquired psychiatric disorders. The question regarding the etiology of such disabilities is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The Board reiterates that in light of the December 2018 Joint Motion and Court order vacating the Board’s March 2018 decision, the Board, again, remanded the issue in August 2019 for additional development. In November 2019, the Board requested that the Veteran complete the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), so that VA could obtain the authorization to request treatment records from his private medical sources listed. The Veteran’s completed authorization form was received in January 2020 and the only private medical source listed was Psychological Consulting Incorporated. In January 2020, VA notified the Veteran that records from Psychological Consulting had been requested but ultimately it was his responsibility to ensure that VA receives the requested records. A January 2020 memorandum from the Veteran’s treating psychologist at Psychological Consulting advised the VA that the Veteran received evaluation at the request of the Social Security Administration (SSA). The psychologist advised VA that Psychological Consulting was not permitted to release any records per the agreement with SSA; however, VA could contact SSA and request the records directly. However, the Veteran’s SSA records, including records from Psychological Consulting, have already been obtained, associated with the claims file and reviewed in conjunction with this current decision and the earlier Board decisions. In August 2020, the Board requested that the Veteran complete the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), so that VA could obtain the authorization to request treatment records from the Washington, D.C. Department of Mental Health. To date, the Veteran has not completed the necessary authorization to allow VA to obtain these private treatment records. Given the Veteran’s inability to cooperate with VA to obtain these records, further effort to assist the Veteran will not be undertaken. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). In addition, in compliance with the December 2018 Joint Motion and Court order vacating the Board’s March 2018 decision, the records of a different K.A., who was not this Veteran, have been removed from the Veteran’s claims file. (Continued on the next page)   Accordingly, on this record as explained in detail above, the claim of entitlement to service connection for an acquired psychiatric disorder must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.