Citation Nr: 21002512 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-06 292A DATE: January 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that an acquired psychiatric disability, to include PTSD, anxiety, and depression, had its onset in or is otherwise related to active serve. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1992 to March 1993. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, service connection for psychosis may be presumptively awarded for chronic symptoms in service, a disorder diagnosed within a year of discharge, or when there is a continuity of symptomology since service. 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125. Given that the Veteran’s claim for service connection was certified to the Board in April 2015, any diagnosis of PTSD must conform to the standards set in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). See 38 C.F.R. § 4.125, 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015). In determining the probative value of medical opinions, part of the Board's consideration is to determine how much weight to assign the foundation upon which the medical opinion is based. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his [or her] knowledge and skill in analyzing the data, and the medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). To have probative value, a medical examination report submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran’s claim was most recently denied by the Board in a May 2019 decision. In September 2019, the Veteran filed a motion to vacate the May 2019 decision on the basis that “the Veteran’s attorney submitted a motion on April l4, 2019, in which he requested the Board to wait 90 days before adjudicating the claims, and that motion was not ruled on prior to the May 23, 2019 decision, nor had 90 days passed.” In October 2019, the Board vacated the May 2019 decision. By an October 8, 2019 brief, the Veteran’s attorney submitted additional argument and evidence, waived AOJ consideration of this evidence, and indicated that was the final submission in support of the appeal. He waived any additional remaining time. Therefore, the Board will proceed in adjudicating the Veteran’s claim on the merits. The Veteran contends that he suffers from PTSD, as well as other psychiatric disorders, due to two incidents in active service. He contends that he experienced a parachuting accident during training in approximately October 1992 while at Fort Bragg, North Carolina. He was using a parachute that he had folded and contends that he was in fear for his life when he approached and landed into a tree. He was not injured by such accident and admittedly did not seek treatment. As a second contention, he stated that he experienced stress when his unit was placed on alert to ship out to Somalia, although he was never actually deployed. The Veteran’s October 1991 service entrance examination was negative for any psychiatric history or current diagnosis. In February 1993, he underwent a mental status examination after testing positive for illegal cannabis use. The examiner noted that his mood or affect was anxious, but the examination was otherwise normal. The examiner determined that there were no psychiatric illnesses and the Veteran was diagnosed with cannabis abuse. He was psychiatrically cleared for an administrative separation. Military personnel records confirmed that his military occupational specialty (MOS) was parachute rigger, which he did for six months. He was given a general discharge due to misconduct (abuse of illegal drugs). In April 2003, approximately 10 years post-service, the Veteran was hospitalized for mood impairment and suicidal ideation. He presented with depression, anxious mood, and suicidal thoughts in the context of marijuana abuse. He was diagnosed with major depressive disorder, panic disorder, agoraphobia, cannabis and alcohol abuse, and rule-out bipolar disorder. He was started on prescribed medications to treat his symptoms. He then began regular treatment with a psychiatrist. In May 2003 and June 2003, he self-reported to his treating clinicians that his symptoms began in 1994. He went on to describe stressors leading to his psychiatric symptoms including unemployment, financial stress, marital problems, his parents’ and grandparents’ declining health, and his wife’s depression and anxiety. These issues were listed as ongoing stressors for several years. The records also stated that depression runs strong in the Veteran’s family with his biological mother having a history of depression and his two aunts having a history of mental illness. In January 2006, a psychology associate noted that she had added PTSD to the Veteran’s list of diagnoses due to ongoing symptoms. There is no evidence that a PTSD evaluation was conducted at the time. The report also noted “continues to experience anxiety symptoms which originally began when discharged from Army.” Multiple lay statements were submitted by the Veteran and his friends and family in May 2006 and August 2006. Similar statements were submitted in October 2019. His friends and family stated that he had expressed worry about a possible deployment to Somalia and that he had felt he was going to die during the parachuting accident. They also reported that he had changed since his military service, and that since separation he had been depressed, anxious, had experienced marital problems ending in divorce, and was unable to maintain employment. The Veteran reported that during service he became unable to deal with the pressure of his MOS packing parachutes. Depression and nightmares about possibly going to Somalia made it harder to focus and concentrate, leading to substance abuse. He stated that after discharge, he experienced ongoing depression and nightmares, with further distress triggered by events on the news and being in crowds of people. The Veteran underwent a VA psychiatric examination in May 2007. He was diagnosed with anxiety disorder NOS and marijuana abuse, manifested by symptoms of anxiety with phobic symptoms and depression. The examiner noted that the onset of his symptoms was in 2003 and he showed no evidence of anxiety or affective response when reporting symptoms. There was total endorsement of all PTSD symptoms without any subjective evidence of distress. The examiner stated that the Veteran's description of stressors did not meet the criteria for PTSD. A March 2010 Disability Determination examination indicates that the Veteran was seen “for reevaluation of Social Security benefits.” When asked to clarify when his alleged psychological problems start, he reported “since 2003, was when I was diagnosed. It was before I was diagnosed. For probably 15 years.” Fifteen years prior before 2003 would be 1988, several years prior to the Veteran’s period of service. If the Veteran was contended that he had psychological issues for 15 years from the date of examination, that would be approximately 1995, which is several years after his period of service. The report also indicates “it should be noted to the reader that as the interview progressed, the consultant had some concern that [the Veteran] may have had a tendency to exaggerate symptoms.” Another private clinician noted in May 2012 that the Veteran suffered from “PTSD related to having been over in a war years ago.” A diagnosis of “probably PTSD” was henceforth given by that clinician with no evidence of a PTSD work-up having been conducted. Another VA examination was conducted in May 2012. The Veteran was diagnosed with dysthymia and cannabis abuse manifested by depressed mood and anxiety. The examiner determined that the claimed condition was less likely than not related to the Veteran's service. In support, he stated that the military records included no treatment or indication for treatment of any psychiatric problems at the time of discharge for cannabis abuse. The Veteran did not seek treatment for ten years, and initially never alluded to his military activities causing his problems with anxiety, depressive symptoms, poor work history, and financial and marital stress. A letter from the Veteran's treating social worker, which was received in January 2015, states that he received monthly therapy and medication for major depressive disorder, recurrent, and PTSD. In December 2015, a Disability Benefits Questionnaire (DBQ) was submitted from a private psychologist with an accompanying opinion. She diagnosed unspecified anxiety disorder. Based on the February 1993 notation of an anxious mood; the post-service treatment records diagnosing major depressive disorder, PTSD, and panic disorder; several included medical treatises regarding typical mental health symptoms among veterans; and the lay statements from the Veteran’s friends and family; the clinician concluded that the Veteran’s unspecified anxiety disorder more likely than not began in military service, has continued uninterrupted to the present, and prevented him from maintaining substantially gainful employment. A May 2016 VA treatment record noted that the Veteran had declared suicidal intentions on social media due to not being able to get past the parachuting accident. A social worker discussed the incident with him, and he stated that he did not really want to die but had been drinking during the incident. The Veteran underwent another VA examination in March 2019. The examiner conducted a full review of the medical opinions and notations of record, summarizing each clinician's diagnoses and treatment of the Veteran. He determined that the claimed condition was less likely than not incurred in service or caused by any in-service event. He stated that the Veteran met the criteria for cannabis use disorder and had a history of substance-related impairment, to include his military discharge and two DUIs. Moreover, he had documented diagnoses of substance abuse by providers Geete (April 2003), Shahmalak (April 2003), Woolley (May 2007), and Larmore (May 2012), and has reportedly continued to use cannabis for several decades without any lengthy period of abstinence. He continued that there was little clear evidence that his cannabis use disorder was related to or began during active service, as this was first diagnosed during his April 2003 hospitalization. The examiner concluded that the etiology was likely better accounted for by maladaptive coping skills and physiological/psychological dependence. Further, the examiner stated that the Veteran’s clinical presentation was somewhat unclear, given his acquiescent presentation and history of substance abuse. Psychological testing was administered to assist with diagnostic clarity; however, the Veteran produced an invalid Minnesota Multiphasic Personality Inventory (MMPI-2-RF) profile due to overreporting of infrequent responses. Considering his history of various mental disorders and related treatment, and his presentation of mood impairment, the examiner rendered a diagnosis of unspecified depressive disorder with anxious distress. He noted that although the Veteran believed his mental disorder resulted from his military service, there was little evidence to suggest a positive military nexus outside of lay statements. For example, his STRs read negative for mental health complaints and the available documentation indicated that his mental disorder fully developed during his April 2003 hospitalization, ten years post-service, in response to significant stress because of concerns of the health of his parents and grandfather, as well as financial problems. The examiner concluded that the etiology of the Veteran’s unspecified depressive disorder with anxious distress was likely better accounted for by post-military psychosocial stressors as well as mood-altering substance abuse. In May 2019, Dr. H.-G. provided an addendum to her previous statement from December 2015. She opined: After review of the Veteran’s records, I believe it is likely as not that [the Veteran’s] unspecified anxiety disorder was present during his time in service and has continued to the present. The Veteran told me he was anxious during service and this is corroborated by the 2/1993 Mental State Evaluation which notes an “anxious mood.” Furthermore, he told me he began to self-medicate his anxiety with cannabis and this is also corroborated by the MSE, which diagnosed cannabis use disorder. Given the benefit of a longitudinal records that the examiner in 1993 did not have, I do not think the Veteran had simply a cannabis use disorder in service, but I believe he had an anxiety disorder and was self-medicating that disorder with cannabis. After thoroughly reviewing the Veteran’s claims file, the Board finds that the Veteran has not been diagnosed with psychosis so as to warrant presumptive service connection as a chronic disease. Although he reported to clinicians that his symptoms began in 1994, a year within separation from service, the evidence of record does not support a diagnosis of psychosis at any point during the appeal period. Accordingly, service connection on a presumptive basis is not merited. The Board further finds that the Veteran does not have a current diagnosis of PTSD related to his military service. Although there are several notations of PTSD, there is no evidence of a clinical evaluation diagnosing PTSD in conformity with the DSM-V. Further, the initial notation of PTSD was included “due to ongoing symptoms” but appeared to be based only upon subjective reports of symptoms and not a review of the Veteran’s military records or a clinical evaluation. Moreover, the “probably PTSD” diagnosis was based upon a clearly factually inaccurate basis, as the clinician noted that the Veteran had previously been to war, which he had not. The May 2007, May 2012, December 2015, and March 2019 psychiatric testing reports of record did not find sufficient criteria to warrant a diagnosis of PTSD. Accordingly, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD. Further, the Board finds that the Veteran’s acquired psychiatric disorder, diagnosed as both unspecified depressive disorder with anxious distress and unspecific anxiety disorder, did not have its onset in nor is it otherwise related to his active service. See December 2015 Private DBQ; March 2019 VA Examination Report. The only relevant notation in service was that the Veteran was anxious during a mental health evaluation in which he was determined to not have a psychiatric condition but was diagnosed with cannabis abuse. As the Veteran was charged with misconduct and facing discharge at the time, it is reasonable to assume that he was anxious, but the examining clinician did not find that his anxious mood amounted to a psychiatric condition. He first sought treatment for psychiatric symptoms in April 2003, many years after separation. His complaints to clinicians did not associate any of his symptoms with active service, but instead focused on post-service stressors (unemployment, financial stress, family health problems, marital discord, etc.). His contemporaneous report to clinicians was that his symptoms began after separation. Although there is a positive private opinion of record dated in December 2015 as well as an additional addendum opinion dated in May 2019, the Board finds the rationale upon which the opinions are based to be unpersuasive. The clinician’s opinions relied largely upon the one notation of an anxious mood just prior to disciplinary separation. She also pointed to treatment records which were produced many years after service by clinicians who did not review the Veteran’s STRs and which largely discussed other, post-service stressors as causing his current symptoms. Although she mentioned several medical treatises, she only discussed their relation to the Veteran’s diagnosis based on his subjective lay statements and not on any clinical findings. In contrast, the Board attaches significant probative value to the March 2019 VA opinion as it is well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The diagnoses of unspecified depressive disorder with anxious distress and cannabis abuse disorder were found to be unrelated to service and with an etiology of nonservice-related factors. The examiner discussed the relevant notations in the Veteran’s medical record, lay statements, and the diverging medical opinions. His opinion is supported by the medical record and included an appropriate rationale. Accordingly, the Board has determined that the VA examiner’s findings represent the most persuasive medical opinion of record. The Board recognizes that the Veteran believes his psychiatric condition had its onset in active service and that several lay statements of friends and family suggest a military onset of depression and anxiety, as well. Specifically, in an October 2019 statement, a friend of the Veteran stated: I have witnessed how my friend [the Veteran] has changed and been affected since his discharge. At the time of his parachute accident, he called and told me about it after it happened. He said he thought he was going to die or be killed while serving and especially when his unit . . . was on alert to go to Somalia. And after his discharge he is depressed and very nervous he stays home all the time. There are also several lay statements of record indicating that the Veteran was “deeply troubled and depressed” in the military. However, the lay statements submitted do not indicate that the writers have the requisite medical knowledge and training to render psychiatric diagnoses or to determine the etiology of complex psychiatric disorders. In addition, to the extent the Board accepts these statements as credible, the Board notes that being anxious as a result of a certain event does not necessarily equate to having a diagnosed acquired psychiatric disorder. Furthermore, to the extent the Veteran has contended that he has had the same symptoms since service, the Board does not find him credible. The Board may consider factors such as bias, self-interest, and consistency with other evidence of record in determining the weight and credibility of evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this instance, there are several treatment records which indicate that the Veteran’s symptoms did not begin until 2003, secondary to non-service-connected related stressors. Further, on several occasions, including on VA examination in May 2007 and March 2019, and during an examination being conducted by SSA in March 2010, it was noted that the Veteran had a tendency to exaggerate symptoms. For example, the March 2010 examiner stated: “it should be noted to the reader that as the interview progressed, the consultant had some concern that [the Veteran] may have had a tendency to exaggerate symptoms.” On VA examination in May 2007, the examiner noted: “the patient endorses all symptoms, that is inconsistent with the lack of a stressor.” The March 2019 VA examiner noted “the MMPI-2-RF is a 338-item forced-choice objective measure of personality and psychopathology. Veteran’s performance on this measure produced an invalid profile as over-reporting is indicated by an excessive number of infrequent responses. This level of infrequent responding is uncommon even in individuals with genuine, severe psychological difficulties who report credible symptoms.” Because of the Veteran’s noted inconsistent statements, the Board does not find him to be a credible historian. As noted above, the private nexus opinions of record rely largely on the Veteran’s reports. Pertinently, the examiner stated the Veteran “told me he began to self-medicate his anxiety with cannabis and this is also corroborated by the MSE.” Although the record does show that the Veteran illegally used a schedule 1 narcotic during his period of service, the MSE does not support that this was done to “self-medicate.” Because the Veteran is not credible, his statements and the private opinions which are largely based on his statements lack probative weight and are outweighed by the other medical evidence of record. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that an acquired psychiatric disorder had its onset in or is otherwise related to active service. As the preponderance of the evidence is against service connection, the benefit of the doubt rule is not for application. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.