Citation Nr: 21002122 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-15 079 DATE: January 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, including as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran had a current diagnosis for PTSD at any time during or approximate to the pendency of the claim. 2. The Veteran was diagnosed with depressive disorder during the pendency or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against a finding that the Veteran’s depressive disorder was incurred in service or is otherwise etiologically related to an in-service injury, event, or disease, including as secondary to service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, have not been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 2000 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and December 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed separate claims for PTSD and depression (originally filed as a personality disorder with depression). A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has taken an expansive view of the claims for service connection for PTSD and depression pursuant to Clemons and re-characterized it as shown on the cover page of this decision. In January 2014, the Veteran testified at a Board hearing before an undersigned Veterans’ Law Judge (VLJ) as to his application to reopen a claim of service connection for an acquired psychiatric disorder. A copy of that hearing transcript has been associated with the claims file. Subsequently, a May 2015 Board decision reopened and remanded the matter of service connection for a psychiatric disorder for an additional mental health examination. The decision also remanded the Veteran’s separately filed claim for service connection for PTSD for a hearing, as requested by the Veteran. In September 2015, the Veteran testified at a Board hearing before another undersigned VLJ for his PTSD claim. A copy of that hearing transcript has been associated with the claims file. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (CAVC) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (2012). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a “claimant’s appeal is assigned to a Board panel in a piecemeal fashion,” CAVC (the Veteran’s Court) held in Arneson that the “claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case.” Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather “only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case.” Id. The Veteran was notified, by a letter issued in February 2016, that he had the right to a hearing before a third VLJ. In a February 2016 written response, the Veteran specifically declined to testify before a third VLJ. VA has complied with the requirements set for in Arneson. Id.; 38 C.F.R. § 20.700(a). The Veteran also declined a third hearing at the September 2015 hearing. In April 2016, a panel of three VLJs, remanded the claims of service connection for an acquired psychiatric disorder, including PTSD, an adjustment disorder with depressed mood, or depression. In September 2018, a panel of three VLJs, remanded the claim of service connection for an acquired psychiatric disorder, including PTSD and depression. In response to an April 2020 SSOC, the Veteran filed a Form 9 in May 2020 requesting a video conference hearing. The Veteran was again notified, by a letter issued in November 2020, as to his rights to a hearing before a third VLJ and asked to clarify his hearing request. In November 2020, the Veteran returned a written response again waiving his right to a third hearing before a third VLJ and asked the Board to proceed without delay to issue a panel decision concerning these issues. Service Connection Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of a diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. 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; 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. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, including as secondary to service-connected disabilities. The Veteran contends that his acquired psychiatric disorders, to include PTSD and depressive disorder, manifest during active service or are otherwise related to active service. As to depression, the Veteran also contends that his condition is secondary to his service-connected disabilities, including GERD and pseudofolliculitis barbae. During the September 2015 Board hearing, the Veteran testified that he believed he had symptoms of PTSD, such as poor eating habits and difficulty adjusting to people, that arose or were caused by difficulties and stress experienced during training. When interviewed during a June 2016 VA examination regarding trauma or stressors experienced during active service, the Veteran stated that the whole experience in active service was scary, elaborating with stating that he was out at sea for months at a time, living in confined spaces, and going into unfamiliar places. The Veteran has also stated that he felt “used and abused” by the military and was upset about his training difficulties, in-service diagnosis for a personality disorder, and his separation from service. The Veteran’s service treatment records indicate that the Veteran was administratively separated from service due to limited abilities. The record shows that the Veteran was examined as a result of difficulties experienced in a training phase of his service. The Veteran was diagnosed with a learning disorder in Math and English, and a personality disorder NOS with schizotypal and inadequate features. In a March 2000 Report of Medical History, completed at the time of enlistment, the Veteran checked “no” for frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, and suicide attempts. The Veteran noted that he was treated for depression at age 12. In a March 2000 Report of Medical Examination, the examining physician endorsed “normal” for psychiatric functioning of the Veteran. The physician noted that the Veteran received out-patient treatment for depression at age 12 with no apparent continued depression or sequelae. The physician found no diagnosis. In a July 2001 Report of Medical History, completed at the time of separation, the Veteran checked “no” for nervous trouble of any sort; loss of memory or amnesia, or neurological symptoms’ frequent trouble sleeping; receiving counseling of any type; depression or excessive worry; evaluation or treatment for a mental condition; or attempted suicide. In a July 2001 Report of Medical Examination, the examining physician endorsed “normal” for psychiatric functioning of the Veteran. In June 2001, the Veteran was treated for acute sinusitis. The treating physician observed that the Veteran seemed depressed or upset and recommended a review for depression. However, the Veteran’s service treatment records do not contain any other complaints of, treatment for, symptoms of, or a diagnosis for an acquired psychiatric disorder, to include PTSD and depression. As noted above, the Veteran served from June 2000 to August 2001. As noted above, the Veteran originally filed a claim for entitlement to service connection for a personality disorder with depression. The Veteran was provided a VA examination for mental disorders in December 2001. The examiner diagnosed the Veteran with an adjustment disorder with depressed mood. The Veterans VA treatment records indicate that he was treated for problems with mood and anger in March 2002, including hospitalization (72-hour hold) due to homicidal statements. The associated reports indicate that the Veteran’s anger was related to his in-service diagnosis for a personality disorder and subsequent discharge from the military. The diagnostic impression for the Veteran was a mood disorder and possible personality disorder. In an April 2002 mental health consultation, the Veteran was assessed with an adjustment disorder with depression and referred for anger control treatment. In a November 2003 mental health followup, which included Personality Assessment Inventory (PAI) testing, the examiner found no evidence of depression or of a prevalent personality order. In April 2006, the Veteran sought mental health treatment related to dreams. The diagnostic impression provided was for a depressive disorder NOS and personality disorder NOS. In August 2006, a diagnosis for major depressive disorder and possible personality disorder was provided in a mental health counselling session. In a December 2006, February 2007, and October 2007, mental health assessments, the Veteran was diagnosed with a personality disorder NOS with narcissistic traits. The Veteran was provided a mental health diagnostic assessment in March 2009 and diagnosed with a personality disorder NOS with narcissistic traits. In July 2010, the Veteran was provided mental health evaluation and testing. The Veteran was provided a primary diagnosis of narcissistic personality disorder with a mood disorder. From 2010 to the present, the Veteran’s VA treatment records show that he was examined periodically for mental health issues and received numerous VA psychological evaluations. These assessments consistently yield a primary diagnosis of narcissistic personality disorder with a secondary diagnosis of depressive disorder. These diagnoses appear to have initially arose from the mental health examination provided in April 2006 and have been continually reaffirmed in mental health evaluations performed since that time. As to PTSD, the record indicates that, at the Veteran’s request, he was assessed and evaluated by numerous VA mental health specialists and professionals for PTSD. However, the Veteran’s treatment records do not show a diagnosis for PTSD. VA treatment records and numerous mental health evaluations over many years have repeatedly found that the Veteran does not have a diagnosis for PTSD or meet the criteria for referral to PTSD treatment groups. Notably, an August 2012 mental health assessment stressed that the Veteran has a personality disorder, but not PTSD or symptoms of PTSD. The treating physician noted that the Veteran frequently changed VA mental health providers and had no previous diagnosis of PTSD from other VA doctors. The Veteran was provided a VA examination for mental disorders in January 2012. The examiner diagnosed the Veteran with a narcissistic personality disorder. The examiner found that the Veteran did not meet the diagnostic criteria for a depressive disorder. The examiner found that the Veteran’s claimed depression is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected GERD. The Veteran was provided a VA examination for mental disorders in February 2013. The examiner found that the Veteran does not meet diagnostic criteria for a depressive disorder or any other psychiatric disorder related to military service or secondary to his service-connected GERD. Pursuant to the April 2016 Board remand, the Veteran was provided a VA examination for PTSD in May 2016. The examiner found that the Veteran does not have a diagnosis of PTSD or other acquired psychiatric disorder. The examiner explained that the Veteran does not have a reported stressor adequate to support a diagnosis of PTSD and does not have symptoms to support a PTSD diagnosis. The examiner noted that the Veteran was evaluated for psychiatric conditions during service and only found to have a learning disability and personality disorder, both of which the examiner considered developmental in nature. Simply stated, there is now very significant evidence against the claim that the Veteran has PTSD. As to the Veteran’s prior diagnoses for depressive disorder, the examiner found that there is no evidence to suggest that this was incurred in the military, nor aggravated by the military. The examiner stated that the Veteran’s mood symptoms appeared to have been significantly fueled by his personality characteristics. The examiner explained that, throughout his treatment, the Veteran’s personality disorder appears to be the primary diagnosis and there is no evidence to suggest that there is an acquired disability ‘superimposed’ during service that resulted in additional disability. Pursuant to the September 2018 Board remand, the Veteran was provided a VA examination for mental disorders in June 2019. The examiner did not diagnose the Veteran with a mental disorder. The examiner found that, based on review of his record and his interview, the Veteran’s symptoms do not meet the diagnostic criteria for any mental disorder due to his service-connected conditions at this time. The examiner also stated that there is not sufficient evidence to indicate that symptoms of a pre-existing mental disorder were aggravated by military service. As an initial matter, the Board acknowledges that the Veteran was diagnosed with a personality disorder during service and on many occasions after service. However, service connection may not be awarded for personality disorders. See 38 C.F.R. § 3.301. Although service connection may be granted for disability due to a superimposed disease or injury, none are shown in this case. As to PTSD, the dispositive matter is whether the Veteran has a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Here, the Veteran has not been found to meet the criteria for a PTSD diagnosis. See 38 C.F.R. § 3.304 (f). While the Veteran has been assessed and evaluated for PTSD on numerous occasions, the record does not show a diagnosis for PTSD under DSM-IV criteria, DSM-V criteria, or otherwise. Further, the Board notes that the May 2016 VA examinations provided a thorough evaluation for PTSD and comprehensive review of the Veteran’s medical history. This examination was supported by a compelling rationale; detailed clinical interview; thorough review of the Veteran’s record and relevant history; and, most importantly, some of the Veteran’s own statements within the evaluation. Therefore, the Board find that the May 2016 VA examination is probative as to a PTSD diagnosis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As for the Veteran’s contentions that he has a current diagnosis of PTSD, the Federal Circuit has held that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.” Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Moreover, by regulation, PTSD is a condition that can only be diagnosed by a medical professional, according to 38 C.F.R. § 3.304 (f). Therefore, given the lack of a diagnosis for PTSD, the Board finds that service connection for PTSD is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As to a depressive disorder, VA treatment records show that the Veteran has a longstanding diagnosis for a narcissistic personality disorder with a secondary diagnosis of a depressive disorder. The Board acknowledges that the January 2012, February 2013, May 2016, and June 2019 VA examinations did not find that the Veteran met the diagnostic criteria for a depressive disorder. The record also suggests that the Veteran’s depression is a symptom of his personality disorder, which the Board cannot grant service connection for directly. The best evidence in this case strongly indicates that the Veteran has a personality disorder, standing alone. On this basis alone the case must be denied. In any event, even if we assume (for the limited purposes of this decision) the Veteran has a disability other than a personality disorder, the Board, to fully address this case, will proceed to address this issue. While the May 2016 VA examination for mental health conditions did not find a current diagnosis for a depressive disorder, the examiner did recognize that the Veteran had a depressive disorder diagnosis at times since his 2002 mental health assessment. As to these prior diagnoses, the examiner found that there is no evidence to suggest that a depressive disorder was incurred during active service, nor aggravated by active service. The examiner noted that the Veteran was evaluated for mental health conditions during active service and not found to have a mood disorder. The examiner explained that the Veteran’s mood symptoms appeared to have been significantly fueled by his personality disorder, which the examiner considered developmental in nature. The examiner also noted that results of a July 2010 psychological evaluation, which diagnosed the Veteran with a personality disorder and secondary depressive disorder, attributed that Veteran’s depressive symptoms to a wide range of factors, including the “state of the world” and perceptions that others treat the Veteran unfairly. As to a depressive disorder as secondary to a service-connected disability, the June 2019 VA examination found that the Veteran’s symptoms do not meet the diagnostic criteria for any mental disorder due to service-connected conditions, including GERD and pseudofolliculitis barbae. As to aggravation of a preexisting condition, the record shows that the Veteran reported treatment for depression at age 12. However, the record does not support, nor has the Veteran alleged, that he entered service with a preexisting mental health condition. Upon entrance to service, the Veteran reported no depression or excessive worry and an examining physician found no apparent continued depression or sequelae related to his childhood treatment, no diagnosis for depression, and endorsed the Veteran’s psychiatric functioning as normal. The May 2016 and June 2019 VA examinations also found that there was not sufficient evidence to suggest or indicate that a pre-existing acquired psychiatric disorder was aggravated by active service. Significantly, the record does not contain any etiological opinions or suggestions that relate or attribute the Veterans depression or mood disorders to active service, including as secondary to a service-connected condition. Here, there is no competent evidence of a nexus between service and the Veteran’s acquired psychiatric disorders. The only evidence of record in support of such a nexus is the Veteran’s lay opinion that these conditions are due to service. To the extent the Veteran’s statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. As such, the Veteran’s assertions as to a relationship between his mental health conditions and service are of little probative value. The Board also finds that the preponderance of the evidence of record is against a finding that the Veteran’s diagnosis for a depressive disorder was incurred in service or otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). It is important for the Veteran to understand that the January 2012, February 2013, May 2016, and June 2019 VA examination findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinions. Again, the Veteran has not been diagnosed with PTSD and there is no competent and probative evidence that the Veteran’s depressive disorder is related to service. Based on the reasons and bases discussed, the Board finds the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder, must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. (Continued on the next page)   Furthermore, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.