Citation Nr: 21002527 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-30 237 DATE: January 13, 2021 ORDER Service connection for post-traumatic stress disorder (PTSD) (or any other acquired psychiatric condition) is denied. FINDINGS OF FACT The Veteran does not have a DSM-5 compliant diagnosis of PTSD or any other acquired psychiatric condition. There is no credible evidence of an in-service PTSD stressor or any other in-service injury or disability. CONCLUSION OF LAW The criteria have not been met for service connection for PTSD (or any other acquired psychiatric condition). 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 had active service from August 1978 to May 1979 and from November 1990 to July 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Regional Office (RO) for Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned Veteran’s Law Judge in August 2020. A transcript of that hearing is associated with the claims file. 1. Service connection for PTSD Legal Criteria Service connection for PTSD requires a medical diagnosis that conforms to the Diagnostic and Statistical Manual, Fifth Edition (DSM-5); a causal link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). There are several avenues to establish that an in-service stressor occurred (in addition to the option of obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository): an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; or a stressor related to Veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). The Board will also consider whether service connection might be warranted for PTSD (as an acquired psychiatric condition) or for any other acquired psychiatric condition under the traditional three-part test for service connection, which requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999); see Clemons v. Shinseki, 23 Vet. App. 1 (2009) (Board must consider any disability that “may reasonably be encompassed by” a description of the claim, symptoms reported, and other evidence). A VA medical opinion is adequate if it is “thorough and contemporaneous,” considers the veteran’s prior medical examinations and treatment, and “describes the disability... in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two” and “most of the probative value of a medical opinion comes from its reasoning.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must read a medical examination report or opinion as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). VA may not rely on a speculative medical opinion, but an opinion is not inadequate when an examiner is unable to provide an opinion but gives a valid reason for being unable to opine. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative and cannot be assigned probative weight when it uses equivocal language such as “could” or “might,” without any other rationale or supporting data); see also Jones v. Shinseki, 26 Vet. App. 356 (2012). Factual Background The Veteran’s claim is for service connection for PTSD and the Board will also consider whether service connection is warranted for any other acquired psychiatric condition. Regarding an in-service stressor, the Veteran stated that, while he was stationed in Kuwait, in January through June of 1991, he was “exposed to constant incoming mortar, SCUD and rocket bombardment. One rocket landed unexploded within 50 meters of my then position. Being at a fuel depot, I was sure that was my last day on earth. … I am still experiencing nightmares, flashbacks and panic attacks as a result.” See December 2014 Statement in Support of Claim. In May 2015 the Veteran underwent a VA examination. The examiner indicated that he had reviewed the Veteran’s electronic claims file and that “[r]ecent medical history and documentation was also obtained via electronic medical records in CPRS/Vista.” The examiner thoroughly set forth the Veteran’s social, educational, occupational, and military service history, and noted the relevant medical history in the examination report, including negative psychiatric, neurological, and PTSD screenings from 1979 through service and separation, through 2011. The examiner expressly noted the Veteran’s claimed PTSD stressor, quoting directly from the Veteran’s December 2014 report of his time in Kuwait. The examiner conducted a clinical interview and noted that the Veteran had an “[a]ffected presentation” which was “inconsistent throughout the evaluation process”; the examiner reported that “the [V]eteran began to rock [his] in seat during [the] clinical interview but [that this] behavior was not consistent and ceased with distraction.” The examiner administered multiple symptom validity tests and reported that the Veteran demonstrated clear and unmistakable evidence of exaggeration/amplification of psychiatric symptoms on multiple symptom validity evaluation procedures in a medico-legal/ compensation context. The current evaluation results are so problematic that there is no other reasonable way to interpret the test outcomes other than intentionality in presenting oneself in an extremely negative light in the context of possible secondary[ ]gains. The veteran noted having significant current financial pressures, which may have significantly influenced the exaggeration and over-endorsement behavior observed and documented during the current C&P mental health evaluation. Unfortunately, however, the veteran's problematic evaluation behavior makes it reasonably impossible for the current C&P mental health examiner to determine the factual presence of claimed psychiatric (PTSD) symptoms, symptom severity, frequency or claimed functional impact without resorting to mere speculation. It is reasonably impossible given the current evaluation to accurately and reliably determine the veteran's functional capacities as they relate to employment or social/interpersonal functions. May 2015 VA C&P examination report. Because of the documented symptom exaggeration, the examiner was unable to provide a diagnosis of PTSD or any other mental disorder. The examiner explained that, if symptom validity test results are mixed, it is common practice to err in favor of a veteran; however, in this case, all test results showed significant exaggeration of symptoms. The examiner also clarified that he was not opining that the Veteran did not have a psychiatric condition or symptoms, just that the Veteran’s intentional behavior during the examination prevented the examiner from being able to provide an opinion without speculation. In December 2015 the Veteran was seen by a VA psychiatrist for treatment. The psychiatrist reported a diagnosis of PTSD and stated that “the patient . . . currently meets the criteria for PTSD secondary to combat” although the psychiatrist noted also noted the May 2015 examination testing that indicated the Veteran might be malingering. The psychiatrist noted that the Veteran’s affect was “quite restricted” and that “much of the hx [history] was obtained via chart review.” Active symptoms were listed as poor sleep and nightmares, and the psychiatrist noted that “other stressors include finances as he is no longer working.” A September 2016 psychology note indicates that the Veteran reported continuing sleep problems and nightmares. The therapist “attempted to assess [the] specific content of [the] nightmares” as part of the treatment, and reported that the Veteran “was initially va[gu]e” then stated that he was “haunted by the image of dead children that he saw on his way to a refueling site.” In March 2017, a psychiatry note indicated that the Veteran continued to report nightmares despite the medication he had been prescribed, and that the psychiatrist was “[w]orried about hypotensive effects if dose was increased” and was planning to prescribe a different medication as a result. The psychiatrist wrote that she was “[b]affled” by the fact that the Veteran’s nightmares were so “treatment-refractory” (that is, resistant to treatment by medication) to the point that she was prompted to complete a thorough chart review. In August 2020, the Veteran testified at a Board hearing. At that hearing, the undersigned Veterans Law Judge (VLJ) expressly raised the issue of the negative credibility evidence so the Veteran and his representative would have an opportunity to address it. The VLJ explained to the Veteran that the May 2015 VA examiner’s negative opinion was based on multiple tests that indicated exaggeration of symptoms and malingering; the VLJ invited the Veteran and his representative to provide any context or other positive evidence that might rebut a possible negative credibility finding. In response, the Veteran reiterated that the reports of his stressors in the record are true. He said that the May 2015 examiner “gave statements that are not true about me” and that his PTSD “is something that I live every day.” His representative asked him to explain which of the May 2015 examiner’s statements were not true and the Veteran responded: “It has been so long ago at the time then, but what I am saying . . . [is] that when you get blown up in a building, and get blown out of a building, that’s the thing I have to deal with for the rest of my life.” He later stated that one of his symptoms was “see[ing] a child that had died.” The Veteran’s representative asked whether the Veteran had understood all the questions on the forms provided by the May 2015 examiner and the Veteran responded that he had not. Analysis The Board finds that the preponderance of the evidence weighs against finding that the Veteran has a diagnosis of PTSD or any acquired psychiatric condition and also weighs against finding that the Veteran experienced any in-service injury or disability, including the PTSD stressors he reports. Diagnosis The Board finds the May 2015 VA examination report to be extremely probative. The examiner provided a thorough report that included a detailed explanation in support of the medical opinion that the Veteran’s exaggeration and amplification of psychiatric symptoms made the evaluation results so problematic that the examiner could not render any DSM-5-compliant psychiatric diagnosis (and, subsequently, no causal linkage could be provided because there was nothing to link to). The examiner explained that the opinion was based on multiple objective tests and that all of the test results indicated that the Veteran was significantly exaggerating his symptoms. Despite the fact that the examiner could not provide a diagnosis, this does not render the opinion inadequate because the examiner provided a valid explanation. See Jones v. Shinseki, 26 Vet. App. 356 (2012). Therefore, the Board assigns significant probative weight to the May 2015 medical opinion. [The Board also notes that, although the ultimate conclusion is that a diagnosis cannot be provided, the examination report appears to be free of bias and is presented in a tone that is non-judgmental and even sympathetic.] The September 2015 VA treatment report noted a PTSD diagnosis; however, this notation appears to have been based only on the Veteran’s self-reported symptoms and on previous similar notations in the medical record, as opposed to the rigorous diagnostic testing performed by the May 2015 VA examiner. Additionally, the September 2015 therapist noted (and did not challenge or dispute) that, based on psychiatric testing done in May 2015, the Veteran might have been malingering regarding his reported symptoms. Therefore, the notation PTSD in the September 2015 treatment note cannot be assigned significant probative weight. Although the May 2015 examiner speculated that the Veteran might have a psychiatric disability despite the fact that it was impossible to diagnose one, the Board finds that this particular statement is speculative and will read the remainder of the May 2015 examination report apart from the speculative statement. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that VA must read an examination report or opinion as a whole); see also Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative and cannot be assigned probative weight when it uses equivocal language such as “could” or “might,” without any other rationale or supporting data). Nor does the May 2015 examiner’s speculation that the Veteran might have a psychiatric disability (despite the fact that it was impossible to diagnose one) trigger VA’s duty to obtain a clarification or an additional examination and opinion. It is a veteran’s responsibility to cooperate with VA in developing a claim for benefits. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (explaining that VA’s duty to assist is “not a one-way street”). In light of the finding that the Veteran essentially provided misinformation to the May 2015 examiner, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and that any further attempts to assist the Veteran in developing this claim are thus unwarranted. Id. In-Service Injury or Stressor In addition, the Board cannot assign significant probative value to the Veteran’s statements regarding a possible in-service PTSD stressor event, which have changed numerous times since he filed this benefits claim. His December 2014 statement about being in fear of his life from incoming mortar and an unexploded rocket landing within 50 meters of him at a fuel depot is inconsistent with his subsequent September 2016 statement (which the medical examiner described as “vague”) about seeing dead children, and is also inconsistent with his later August 2020 statement about being blown out of a building. These inconsistencies—along with the highly probative May 2015 symptom validity testing—compel the Board to conclude that the statements about in-service events are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements and consistency with other evidence of record). To be clear, the Board is not questioning the Veteran’s honesty or moral character in general but only the credibility of his statements about the traumatic events he experienced during service and their effects on him (as noted by the May 2015 examination report and testing). The inconsistencies noted above, along with the May 2015 examination report and testing, compel the conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. To e clear, the Board understands that it is possible for a veteran to experience multiple traumatic events during service but finds, in this case—based on the May 2015 symptom validity testing—that the differences in the traumatic events claimed by the Veteran support the finding that the statements are not credible, as opposed to a finding that the Veteran experienced multiple traumatic events. Therefore, the Board cannot assign significant probative weight to the Veteran’s statements about traumatic events and must find that the Veteran did not experience any in-service injury or disability. Id. Despite being invited to provide context or explain the May 2015 symptom validity testing and examination report, the Veteran’s August 2020 Board hearing testimony does not rebut the negative medical findings in that report or the Board’s negative credibility finding. As for the Veteran’s statement that he did not understand the questions on the forms the May 2015 examiner administered, the Board cannot find this statement credible. The Veteran did not volunteer this information himself but only agreed that he had not understood the examiner’s questions after the idea was suggested by his representative. In addition, the May 2015 examiner’s report made it clear that multiple symptom validity tests were administered, that the tests were objective measures and that, if the results were borderline, a claimant would not be considered to be malingering. In this case, however, the May 2015 examiner reported that the multiple tests “demonstrated clear and unmistakable evidence of exaggeration/amplification of psychiatric symptoms” and that “there is no other reasonable way to interpret the test outcomes other than intentionality presenting oneself in an extremely negative light.” See May 2015 examination report (emphasis added). Summary As to a current disability, the Board finds that the preponderance of the evidence weighs against finding that the Veteran has a current diagnosis of PTSD or any acquired psychiatric condition because the May 2015 examination report indicates that the results of multiple objective symptom validity tests show that the Veteran was intentionally exaggerating his symptoms to the point that no diagnosis could be provided. As to an in-service injury or disability, the preponderance of the evidence also weighs against finding that the Veteran experienced an in-service injury or disability because there is no credible supporting evidence that any of the claimed in-service stressors occurred. Therefore, service connection for PTSD (or any other acquired psychiatric condition) must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.J. Smith, 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.