Citation Nr: 21005128 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 07-04 219 DATE: January 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), anxiety disorder with depressive features, and depressive disorder, NOS is denied. FINDINGS OF FACT 1. The Veteran does not have PTSD as a result of a verified in-service stressor. 2. An acquired psychiatric disorder other than PTSD is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a psychosis did not manifest within one year of the Veteran’s service discharge. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder with depressive features, and depressive disorder, NOS have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1972 until he was discharged under honorable conditions in December 1973. This was previously before the Board of Veterans’ Appeals (Board) on appeal from July 2005 and September 2006 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012 and May 2013, the Board remanded the case for additional development. In a January 2014 Board decision, the Board denied the Veteran’s claim for service connection for an acquired psychiatric disorder to include PTSD and depressive disorder, NOS. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). An Order of the Court, dated December 19, 2014, granted a Joint Motion for Partial Remand and vacated, in part, the January 2014 Board’s decision, to the extent that the decision denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, NOS. In May 2015, the Board remanded the case for further development and it now returns for appellate review. The Board notes that additional records have been received after the June 2020 supplemental statement of the case without a waiver. However, such evidence is either duplicative or irrelevant to the issues decided herein; thus, there is no prejudice in proceeding with a decision at this time. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychosis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a 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). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran had a qualifying combat stressor as set forth in 38 C.F.R. § 3.304 (f). When the veteran’s stressor does not qualify under the combat stressors set forth in 38 C.F.R. § 3.304 (f), the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Moreau, 9 Vet. App. 389. The provisions of 38 C.F.R. § 4.125 (a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM-5). However, with respect to this provision, the Board notes that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), is still applicable for claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the Veteran’s claim was certified in September 2009 and is therefore to be considered under the DSM-IV. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for an acquired psychiatric disorder to include PTSD and depressive disorder, NOS. As an initial matter, it is important to note that the December 2014 Partial Joint Motion for Remand indicated that when the Veteran’s service personnel records were requested during the Board’s 2012 remand, only pages from it were produced to show combat awards, travel unit of assignment, etc. What was needed, however, is the Veteran’s service personnel records “in toto” especially those indicative of his article 15s and any information regarding his Chapter 13 discharge. The Board did not discuss in the January 2014 Board decision the failure to acquire those records. As such, the Board remanded the case in May 2015 to obtain such records, which were associated with the Veteran’s record in January 2018. Therefore, VA has met its duty to assist. In this case, the Veteran contends that his acquired psychiatric disorder is due to his military service. In this regard, the Veteran contends that his stressors began in Germany, where he had problems with authorities, was given several Article 15s and medical treatment for his nerves, which eventually led to his discharge. In a May 2015 statement from the Veteran, he reported that, while in the military, he was discriminated against because of his language and for being Puerto Rican. He also stated that he had a lot of problems and had issues with following orders. He reported that, one time when he was on the range, he suddenly decided to shoot himself in the hand and he felt anxiety and aggressiveness ever since he left the military. The Veteran’s spouse also submitted a statement in May 2015. In this regard, she stated that she married the Veteran in 1982 and he discussed his experiences in the military. She explained that the Veteran told her that one time he went to the Captain’s office and broke many of his things. The Board notes that the record reflects diagnoses of acquired psychiatric disorders of PTSD, anxiety disorder with depressive symptoms, and depressive disorder, NOS. However, the Board also notes that the evidence does not show, nor does the Veteran report, that he engaged in combat with the enemy or that his claimed stressor is related to combat service. Accordingly, his statements concerning the reported stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Therefore, independent evidence is necessary to corroborate his statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The service treatment records (STRs) and military personnel records do not corroborate the occurrence of any stressor to support the diagnosis of PTSD, nor do they show that the Veteran’s psychiatric disorder had its onset in service. The STRs show that the Veteran was treated in May 1973 for laceration of the left arm. A June 1973 military personnel record reveals that the Veteran received an Article 15 for cutting his left arm with razor blade to avoid guard duty. In August 1973 it was noted that he was using hash. A September 1973 military personnel record indicates that he had been the subject of unfavorable reports since his arrival in the command. It was further noted that he was counseled by the chain of command with no apparent result. In this regard, it was noted that he was involved, heavily, with drugs and shows no sign of rehabilitating himself. The commander indicated that the Veteran had an extremely poor attitude and made no effect to communicate with any of his superiors, but he had no trouble communicating with his peers. Despite every conceivable measure taken by his superiors, the commander noted that the Veteran’s conduct and efficiency remained totally unsatisfactory and unacceptable to the U.S. Army. In a November 1973 Recommendation for General Discharge, the Veteran’s commander noted that the reasons for the proposed action were due to him exhibiting an apathetic attitude and poor performance. It was further noted that he was counseled repeatedly by the commander, his platoon leader, platoon sergeant, and squad leader, but he failed to respond to counseling, and he had 3 Article 15s. In December 1973, the Veteran’s mental health examination was found to be normal. In this regard, a December 1973 mental health evaluation noted that the Veteran’s behavior was normal, and he did not have a significant mental illness. The Veteran’s STRs also revealed that he was mentally responsible, and he was able to distinguish right from wrong and adhere to the right. Accordingly, the Board finds that the Veteran’s service records, including his STRs, do not show a diagnosis of a psychiatric disorder, to include PTSD, depression or anxiety, nor do his service records show the occurrence of a stressor to support a diagnosis of PTSD. Rather, the reports show that the Veteran received unsatisfactory performance evaluations and that his mental health examination was normal. Consequently, the remaining inquiry is whether the Veteran has an acquired psychiatric disorder that is in any way related to service. In this regard, the Veteran was afforded a VA psychiatric examination in June 2005. At such time, the Veteran reported having engaged in intravenous drug use during service, having used morphine. Due to his in-service drug use he had received an Article 15 and at that time he had cut his wrists and was seen by a psychologist. After a current mental status examination, the examiner diagnosed the Veteran with depressive disorder, NOS, but he did not provide a nexus opinion. In January 2006, the Veteran submitted a report of a psychiatric evaluation from his private psychiatrist, Dr. G.T.G. At such time, Dr. G.T.G. noted that the Veteran complained of depression and nightmares of scenes of his military training. During service he had used marijuana, heroin, and morphine which caused him to engage in strange conduct, such as cutting his arms, which led to an honorable military discharge. On mental status examination it was noted that in the past he had heard voices calling him. The diagnoses were an anxiety disorder with depressive features and PTSD. It was felt that he had many years of anxiety symptoms, including nightmares, sleep disturbance, and lack of interest related to his military experiences. He denied maladaptive conduct prior to service. Additionally, in an April 2013 private treatment note, which was received by VA in September 2013, Dr. G.T.G. noted that the Veteran had PTSD and his emotional condition appeared to be a consequence of his experiences during his military training. In an April 2012 VA examination, the examiner noted that the served in Germany and did not have any combat service. He had received VA mental health treatment since 2006. The examiner also noted that the Veteran was incarcerated during service for the possession of hash and he had an Article 15 in 1973. His in-service drug use eventually escalated to use of intravenous drugs. He had no stressor related to fear of military or terrorist activity and otherwise had no exposure to a traumatic event. While the Veteran did have anxiety, depressed mood, and sleep disturbance, he otherwise did not meet any of the criteria for a diagnosis of PTSD. In another segment of the examination report, it was inadvertently reported that he did meet the criteria for PTSD. However, the examiner noted that the Veteran had sought treatment the same year he had prostate surgery, after a stormy life of drug abuse, hepatitis, and legal problems. He had reported having insomnia, nightmares, and depressed mood. These symptoms were commonly found in those who had had prostate surgery. It was opined that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria. The April 2012 VA examiner noted that no specific stressor was narrated, and that the Veteran never had any combat experience or any other stressful event. The examiner further indicated that the Veteran did not meet Criterion A because he did not have any exposure to a traumatic event. As such, the examiner concluded that the Veteran did not meet the stressor requirement for PTSD. Therefore, a diagnosis of PTSD could not be made. The examiner further explained that the Veteran had reported insomnia, nightmares, depressed mood related to prostatectomy, which was commonly encountered symptoms in many individuals with a prostate cancer diagnosis. The examiner also stated that the Veteran was found with sign and symptoms compatible with those found in individuals with mild depressive disorder. The Veteran sought psychiatric treatment the same year of his prostatectomy and 22 years after military discharge. The April 2012 VA examiner diagnosed the Veteran with depression, NOS, but it was felt that his psychiatric condition started due to his prostate cancer and prostate surgery, and it was not caused, related or associated with his military service or events during military service. In this regard, the examiner explained that the Veteran sought psychiatric treatment 33 years after service, in the same year that he had a prostatectomy. The examiner concluded that the Veteran’s statements did not correlate with the medical facts and actual psychiatric literature. The Board affords great probative weight to the April 2012 VA examiner’s opinion as he considered all of the pertinent evidence of record, to include the Veteran’s relevant medical history and contentions, and provided a complete rationale, relying on and citing to the records reviewed. The examiner’s opinion is consistent with the objective evidence of record. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In June 2015, the Veteran submitted an April 2015 opinion from his private psychiatrist, Dr. G.T.G. At such time, Dr. G.T.G. noted that he had been treating the Veteran since September 2005 and he did not suffer from psychiatric problems prior to joining the military. However, while in service, he began to experience depression. The Veteran self-injured his forearms during service due to his depression and cutting helped him feel better. The Veteran also began to have significant trouble with authority, and began acting out, leading to numerous Article 15s. He also used illicit drugs in service, as a form of self-medication, which led to his discharge under honorable conditions. Dr. G.T.G. further stated that the Veteran was often tired and anxious, and he has difficulty sustaining his sleep. He frequently has nightmares concerning death and tragedies related to military exercises, which awakens him. He also has frequent periods of isolation and irritability. During many nights, he experiences crying spells and irrational fears. On a daily basis, the Veteran had recurrent thoughts about his Army experiences. Dr. G.T.G. concluded that it was more likely than not that the Veteran’s current psychiatric conditions were directly related to his service. He began to exhibit the signs and symptoms of depression while on active duty, as evidenced by his sudden behavior problems and his documented auto-inflicted cuts to his arms. His current depression is a continuation of the depression that began in service. He continued to have nightmares, intrusive thoughts, and flashbacks that were directly related to his military service. Dr. G.T.G. also concluded that it was more likely than not that the Veteran’s diagnosed PTSD is directly related to his experiences in the military. The Board acknowledges the opinions presented by Dr. G.T.G. See January 2006, April 2013, and June 2015 opinions. However, the Board finds that the opinions are of little probative value. The January 2006 opinion is conclusory without adequate rationale and the April 2013 opinion is too general to establish service connection, as the doctor noted that the Veteran’s disorder “appears to be a consequence of experiences lived during his military training.” Further, regarding the June 2015 opinion, while Dr. G.T.G notes that the Veteran self-injured his forearms during service due to his depression and cutting helped him feel better. Dr. G.T.G. did not acknowledge that the Veteran’s service military records show that the Veteran cut his forearm to avoid guard duty. Further, while Dr. G.T.G. states that the Veteran began to have significant trouble with authority, and began acting out, leading to numerous Article 15s during service, Dr. G.T.G. did not acknowledge that the Veteran’s supervisors noted that he was counseled repeatedly by the commander, his platoon leader, platoon sergeant, and squad leader, but he failed to respond to counseling, and more importantly, on mental status examination in December 1973, examination was found to be normal. Depression was not referenced, noted or diagnosed in service. Dr. G.T.G. also did not reconcile his findings with the opinion set forth by the April 2012 VA examiner, wherein the April 2012 VA examiner diagnosed the Veteran with depression, NOS, but it found that the Veteran’s psychiatric condition started due to his prostate cancer and prostate surgery, and it was not caused, related or associated with his military service or events during military service. As such, the Board finds that the opinions of Dr. G.T.G. are of little probative value. Additionally, the Board finds that the Veteran’s description of his in-service events and alleged stressors, to include those as relayed to Dr. G.T.G., are inconsistent and not supported by the contemporaneous record, and, therefore lacks credibility. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran’s military personnel record reveals that he received an Article 15 for cutting left arm with razor blade to avoid guard duty and he had been subject of unfavorable reports since his arrival in the command based on an unsatisfactory work performance. Furthermore, it was noted that he was involved, heavily, with drugs and showed no sign of rehabilitating himself, and received another 2 Article 15s while in service. Additionally, as previously noted, a December 1973 mental health evaluation noted that the Veteran’s behavior was normal, and he did not have a significant mental illness. Therefore, in light of the fact that the Veteran’s statements regarding his in-service experiences and how they developed are inconsistent with the objective, contemporaneous service records and other evidence of record, the Board finds that the Veteran’s statements describing the alleged in-service stressors to be not credible; they are afforded no probative weight. The Board also acknowledges the Veteran’s spouse reports that the Veteran told them about his in-service experiences. However, her statements are based on the Veteran’s reports, which have been found to lack credibility. Consequently, her statements are also afforded no probative weight. Therefore, the Board finds that the Veteran does not have PTSD as a result of a verified in-service stressor. Moreover, to the extent that any diagnosed acquired psychiatric disorder has been attributed to the Veteran’s service, as noted, the Board finds that the Veteran’s recollection of, and recitation of, the occurrence of the inservice events are not credible and thereby, renders any such opinion of little or no probative value. Further, to the extent that the Veteran has been diagnosed with a psychosis, there is no evidence that such manifested to a compensable degree within one year of his service discharge and the record does not show continuity of symptomatology of any such disease since service. The Board has also considered the Veteran’s assertions that his acquired psychiatric disorder was related to his military service; however, as he is a lay person, he does not possess the requisite training and experience necessary to address such complex medical matters. Specifically, a determination as to whether the Veteran has an acquired psychiatric disorder that is related to service requires the expertise of a mental health professional as such a determination may only be made after a clinical analysis that a lay person does not that have the requisite training or knowledge to undertake. As such, the matter is a complex question that may not be competently addressed by lay evidence, and the Veteran’s own opinion in this regard is nonprobative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In conclusion, the Board finds that service connection for an acquired psychiatric disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the probative evidence is against the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable, and this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.