Citation Nr: 21004241 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-01 635 DATE: January 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder due to a disease or injury in service, to include specific in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor-related disorder, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s claim. He filed a notice of disagreement (NOD) in February 2013 and a statement of the case (SOC) was issued in November 2014. The Veteran perfected a timely appeal in December 2014. The claim on appeal were remanded in May 2018 and September 2020 for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in October 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for psychoses if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). A veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C. § 1111. The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. "[T]he Government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness . . ." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see VAOPGCPREC 3-2003 (July 16, 2003) (cited at 69 Fed. Reg. 25,178 (May 5, 2004)). In this matter, the Veteran seeks service connection for an acquired psychiatric disorder, which he contends was incurred during his military service. Specifically, he reported that, in October 1992, he witnessed a soldier sustain a serious injury to his leg after two tanks collided. See the Veteran’s stressor statement dated October 2014. On review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The Veteran served on active duty from November 1989 to October 1993. His September 1993 separation examination did not document any psychological complaints or diagnoses. However, in his September 1993 Report of Medical History, the Veteran endorsed ‘depression or excessive worry.’ The Report noted that the Veteran was “worried over current life situation.” The Veteran’s service personnel records show that he received counseling multiple times for offenses including: failure to make formation (March 1992), failure to be at an appointed place of duty at appointed time (May 1992), failure to follow a lawful order (May 1992), and failure to report and missing morning physical training formation (May 1993). He received an Article 15 in April 1993 for wrongfully allowing an intoxicated person to operate a vehicle and a second Article 15 in July 1993 for unlawfully striking and kicking a fellow soldier. A VA memorandum dated in March 2019 indicated that the Veteran’s claimed PTSD stressor could not be corroborated. An April 2009 VA addiction psychiatry intake evaluation note documented the Veteran’s report of childhood physical abuse. He also reported marital problems and substance abuse. The Veteran spent three years in prison from 1994 to 1997 for assault, and is on probation for possession of cannabis. See the VA treatment record dated April 2009. The Veteran denied a psychiatric history, but reported that he was diagnosed with bipolar disorder last year based upon his response to a questionnaire. The VA treatment provider diagnosed the Veteran with cannabis and alcohol dependence, continuous. See the VA treatment record dated April 2009. VA treatment records dated in December 2013 documented the Veteran’s report of depression, sleep impairment, and loss of appetite. VA treatment records dated in October 2014 noted the Veteran’s report of poor sleep, insomnia, and stress due to financial constraints and child support issues. A diagnosis of ‘other and unspecified alcohol dependence, in remission’ was noted in the VA problem list. See the VA treatment records dated October 2014. The Veteran was afforded a VA examination in September 2019 at which time the examiner indicated that the Veteran does not have a diagnosis of PTSD under the DSM-V criteria. The examiner confirmed a diagnosis of ‘other specified trauma and stressor related disorder (subthreshold PTSD).’ The examiner explained, “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner explained, “[t]here are no clear indications that Veteran had a persistent, clinically significant psychiatric problem . . . that date back to time in service. Overall, a clear nexus has not been established between the Veteran’s military experiences (and/or symptoms caused or incurred in service_ and the currently reported symptoms.” The examiner noted that the Veteran’s “discharge records document endorsement of the statement ‘depression and excessive worry.’ Veteran reported that at the time of his discharge he was under investigation for a stabbing and feared that he would be incarcerated.” The examiner noted that the Veteran described the in-service stressor and reported an extensive history of trauma both before and after the military. Pursuant to the September 2020 Board Remand, the Veteran was afforded a VA addendum opinion in September 2020 at which time the examiner reported, “[a]lthough Veteran recounted several potentially traumatic experiences prior to service, military entry exam and Veteran’s self-report denied mental health concerns prior to service.” The examiner explained that the Veteran’s reported pre-service traumatic experiences were common occurrences in his childhood and were not traumatic. The examiner continued, “[i]n the absence of reported symptoms or treatment, it is concluded that Veteran did not suffer a psychiatric disability associated with trauma prior to service entrance.” The September 2020 VA examiner additionally stated that the diagnosed other specific trauma and stressor related disorder was less likely than not incurred in or related to witnessing a person being cut by a piece of metal during a training exercise. The examiner stated that the Veteran reported “experience of violence and death prior to service was labeled ‘common occurrence growing up and not traumatic.’ Yet they reflect multiple instances that might be considered more violent, life threatening, and potentially traumatic.” However, the examiner noted that the Veteran’s medical records showed mental health treatment for alcohol and drug use, marital distress, parenting difficulties, communication problems, finances, and homelessness. The examiner explained that the record “failed to document a history of trauma related symptoms or diagnosis.” The examiner indicated that the Veteran “recounted multiple violent acts witnessed post military and prior to his diagnosed trauma related disorder,” which “were proximally related to the current diagnosis.” The examiner concluded, Given the absence of trauma related symptoms before and during the military, post military medical records containing negative assessments for PTSD, and the Veteran’s report of trauma related symptoms proximal to his post military imprisonment and exposure to post military violent potentially traumatizing events, it is more likely than not that the post military events are causally related to the Veteran’s current condition. The September 2020 VA examiner noted that the Veteran’s treatment records “contain several instances of medication for anxiety.” The examiner noted that the prescription is consistent with the Veteran’s history of treatment for alcohol and drug use/dependency. The examiner stated that, at the time of the Veteran’s separation from military service, he reported that he was depressed and anxious due to pending legal proceedings. The examiner noted that the Veteran reported a subsequent conviction for assault with a prison sentence. The examiner additionally explained, “[a]s this was situational, it would not likely be associated with the Veteran’s current other specified trauma and stressor related disorder – subthreshold PTSD.” The examiner concluded, While the absence of treatment in service, the laps[e] of time between service and treatment, the documentation of the absence of PTSD symptoms post service, the extent of post military mental health treatment in the absence of PTSD symptoms, and the report of extensive violent potentially traumatic experiences post service, singly might not be adequate to dispute lay statement of continuity, when take together they support the notation that [the] Veteran’s currently diagnosed other specified trauma and stressor related disorder – subthreshold PTSD is less likely than not proximately related to his in-service experience of seeing a man cut with metal. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board observes that this matter was remanded in September 2020 in order for the VA examiner to address the outstanding questions including whether the Veteran’s psychiatric disability pre-existed his military service. To this end, the Board notes that the Veteran’s October 1989 enlistment examination does not document any complaints or abnormalities related to a psychological disability. As such, the presumption of soundness applies. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). The Board has therefore considered whether there is clear and unmistakable evidence that the Veteran's psychiatric disorder pre-existed his military service. As described above, the September 2020 VA examiner concluded that the Veteran did not suffer from a psychiatric disability, which pre-existed his military service. Clear and unmistakable evidence is a formidable evidentiary burden, requiring that the result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003). As such, the Board finds that the evidence does not support a finding that the Veteran's psychological disability pre-existed his military service. The Board additionally finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran’s active duty service outweighs the medical evidence suggestive of a nexus. In particular, the September 2020 and September 2019 VA medical opinions were based on a review of the record, including the Veteran’s statements, and analysis of his medical history. The Board therefore places significant weight on the cumulative findings set forth by the VA examiner who provided the September 2020 and September 2019 medical opinions. See Nieves-Rodriguez, 22 Vet. App. at 295 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Significantly, in the September 2020 and September 2019 medical opinions, the VA examiner discussed the Veteran’s medical history including his self-report of military and life stressors, as well as the progression of his psychological symptomatology. The Board has carefully considered the contentions of the Veteran that he suffers from a diagnosed psychiatric disability, which was incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with 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”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes 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”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran’s lay theory regarding the etiology of his psychiatric disability is contradicted by the conclusions set forth in by the September 2019 and September 2020 VA medical opinions, which specifically considered the Veteran’s lay statements and in-service symptoms. The Board finds the specific, reasoned opinions of the trained health care provider who provided the September 2019 and September 2020 VA opinions to be of greater probative weight than the more general lay assertions of the Veteran. (Continued on the next page)   The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, however, the Veteran’s contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed psychiatric disorder are contradicted by the findings of the September 2019 and September 2020 VA examiners who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinions. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the overall evidence, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran’s claim that he suffers from an acquired psychiatric disorder, to include PTSD, which is related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.