Citation Nr: 21067247 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-41 254 DATE: November 3, 2021 ORDER Entitlement to an acquired psychiatric disorder, to include PTSD is denied. FINDING OF FACT An acquired psychiatric disability, to include PTSD, was not manifest during service and is not caused by service. CONCLUSION OF LAW A psychiatric disorder was not incurred in or caused or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1996 to November 2000 and in the United States Army National Guard from June 2001 to October 2003 with service in Pakistan. He was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded this issue to the RO to obtain a new VA examination. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303 (d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence The Veteran contends that he is entitled to service connection for an acquired psychiatric disability. The Veteran has been diagnosed with depression, a personality disorder, and alcohol dependency. He contends that these disorders began in service. In an August 2000 report of medical examination at discharge from Marine Corps active duty, the Veteran's neurologic system and psychiatric systems were normal. The Veteran also stated he was in good health and denied ever having depression or excessive worry, frequent trouble sleeping, loss of memory or amnesia, or nervous trouble of any sort. See November 2000 STR-Medical, p.69,70. A May 2001 Army enlistment physical examination was also silent for any mental health symptoms. Army personnel records show that the Veteran was deployed to Pakistan from December 2001 to June 2002. In a February 2002 VA treatment note, the Veteran was seen for suicidal ideation and reported that he had planned to shoot himself in his head. The Veteran indicated that his depression was caused by his deployment status at that time but also that he had overwhelming concerns about his spouse and household without clearly identifying the reasons. The Veteran felt several emotions including being sad, anxiety, and having insomnia. A clinician who noted these symptoms strongly suspected that the Veteran was using mood to manipulate his supervisors See October 2003 STR-Medical, p.57. The diagnosis was depression and anxiety because of poor adjustment to the deployment. Two days later, a clinician noted the Veteran denied any suicidal ideations and after communications with his spouse, decided to continue the deployment and was allowed to retain custody of his weapon. In an April 2002 post-deployment health assessment, the Veteran noted that he had sought mental health counseling during the deployment but did not list any combat trauma or continued symptoms, and the examiner noted that no follow up was necessary. In August 2003, the Veteran underwent an assessment by an Army psychiatrist at the Walter Reed Army Medical Center. The psychiatrist diagnosed specific phobia, situational type, and adjustment disorder with mixed anxiety and depressed mood. The situation appears to have been a panic attack on the flight from his home base to the Medical Center, as the Veteran reported in more detail in his substantive appeal noted further in this decision below. However, the clinical observations are entirely inconsistent with the psychiatrist noting no deficits of behaviour, alertness, orientation, mood, thinking, thought content or memory. The psychiatrist first noted that the Veteran understood the medical discharge process and met the retention requirements. On the other hand, the psychiatrist found that the Veteran was not amenable to treatment and cited potentially suicidal behavior and limitations in the ability to perform as a solider. The psychiatrist recommended expeditious discharge, but inconsistently, personnel records show an honorable discharge for a physical condition, not a disability. The regulation cited for separation addresses 9 potential reasons including personality disorder, the only one consistent with the evidence. AR 635-200, para. 5-17. In an October 2003 post-deployment questionnaire, the Veteran noted that he had not again deployed but responded that he had not been in direct combat and had no current mental health symptoms. An examination form was only partially completed, but in a current self-assessment, the Veteran indicated that he was in good health except for fear of flying. In July 2011, a VA treatment indicated that the Veteran's screening was positive for PTSD. See July 2012 Capri, p.2. In another July 2011 VA treatment record, the Veteran reported night sweats, anxiety, and poor sleep. He was diagnosed the previous year with atrial fibrillation (A fib), and he thought it was stress related. The clinician noted neurologic issues included anxiety but no psychiatric problems with depression or insomnia. On examination the examiner found the Veteran was alert, oriented and cooperative with normal speech, no acute distress, and no gross sensory motor deficits. The Veteran had a positive PTSD screening but refused recommended intervention. See July 2012 Capri, p.6;7. In a February 2012 psychiatry note, a clinician noted the Veteran had a diagnosis of depressive disorder NOS and anxiety. However, the Veteran's depression was a 6-7/10 but was due to the job changes of which he learned that day. The Veteran also rated his anxiety a 7/10 and was due to job changes as well. There was no mention of problems in the military. See November 2013 Capri, p.3. In a November 2012 VA treatment record, the Veteran reported that he had been diagnosed with PTSD and stated that he had, had problems since he got back from Pakistan. He stated that he had the same problems the "guys" had been having since the Gulf War and he guessed the government did not learn. The Veteran reported the inability to sleep at night; that he was unable to leave his house and that he was always angry. The Veteran stated that he had been experiencing symptoms since he was in Pakistan. He stated he had been exposed to chemicals and had not been right since then. In addition, the Veteran denied having any mental health related issues during his childhood. See November 2015 Capri, p.4,6. In another November 2012 VA treatment record, the Veteran reported that he was homeless at the time and stayed in his car or with friends. The Veteran stated he moved back to where he was from because he lost his job in the previous town he lived in, due to the medication he was put on by the VA, and for missing too much work due to VA medical appointments. See November 2015 Capri, p.10. In a December 2012 statement in support of claim, the Veteran indicated that his PTSD was due to combat situations he was involved in while stationed in Pakistan including exposure to mortar; artillery and small arms fire. See March 2012 VA 21-4138 Statement In Support of Claim. In a February 2013 VA examination, the Veteran made inconsistent statements. The Veteran previously indicated that he had a good childhood but during this visit he stated "I was perfect before I joined the military.... then stated most serial killers had a better childhood than I did. He also indicated that he lived in a group home away from most of the other kids because he was smarter. The Veteran further indicated that he was told that he was a genius and that his mom taught him how to draw blood by himself. The clinician indicated that the Veteran was clearly experiencing issues. There was no indication of PTSD, but it could not be excluded during that examination. The clinician stated the Veteran did however present with a personality style indicative of Cluster B traits which the clinician stated contradicted his assertions that he did not have mental health issues prior to the military. See November 2015 Capri, p.15. In November 2013, the Veteran was afforded a PTSD VA examination. The examiner indicated that the Veteran did not have PTSD. The Veteran had a diagnosis of depressive disorder NOS with features of anxiety/panic and sleep disturbances. The Veteran was diagnosed with alcohol dependence. The examiner said it was not possible to differentiate what symptoms were attributable to each diagnosis because alcohol use tended to exacerbate the psychiatric issues. The Veteran did not have a traumatic brain injury. The Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran stated that once he went to Pakistan, he stopped talking to everyone. He reported that before deployment to Pakistan, he had a father/ son relationship. The Veteran stated that he grew up with several brothers. One was killed in Iraq; another was serving but he only talked to all brothers once a year since they were busy. The Veteran stated that before the Army he was really friendly and social with others but after he did not want to be around anyone. The Veteran reported all he did was go to work, play on his computer, and maybe go on a walk. He had no interest in his previous activities such as bowling, golfing, and painting. The Veteran denied having children, was not married at the time of the examination, and lived alone in a motel. The Veteran's military occupation specialty was infantryman. When deployed, he reported duties such as office work, guard duties, cleaning toilets, taking out trash and cleaning out vehicles. He stated he took care of soldiers but did not have to do any "invading." The Veteran indicated that he was not involved in combat but was stationed at a forward observation post or close to enemy lines and witnessed death of severe injury/ disfigurement of others. From 2003 to 2005 he worked as a security guard but quit since he got tired of carrying a gun. He worked several office jobs and were fired from two of them. At the time of the examination, he was working as a dispatcher. In addition, the examiner noted that the Veteran's diagnosis was suggestive of a depressive disorder NOS with features of anxiety/ panic that was deemed not likely related to his military service. The examiner stated that the Veteran's records showed he was treated for depression and anxiety in service, but records showed it was less than a 2 week period of time, and it appeared to be situational related to difficulties adjusting to his deployment. The examiner noted the military clinician's suspicion that the Veteran was using mood to manipulate command to meet his desires. In addition, the Veteran was not treated for mental health post-military service until he began experiencing heart problems around 2009 or 2010. In a January 2017 VA treatment record, a clinician indicated symptoms of major psychiatric illness were representative of mania. The Veteran indicated that he had energy when he did not sleep. He stated that he would sleep only 2-3 hours and stayed up the rest of the time. He stated this only occurred in the military. He stated that he was scared to go to sleep. The Veteran stated that he did not know why, and his heart condition had been going on for 10 years. The Veteran indicated that he was not depressed, he was not sad. See August 2020 Capri, p.4. In May 2017, the Veteran was afforded another PTSD VA examination. The examiner noted that the Veteran did not have a diagnosis of PTSD. The examiner diagnosed the Veteran with personality disorder, claustrophobia and alcohol use disorder that was in remission. The examiner found that it was less likely than not that the Veteran's mental health conditions were less likely than not caused or incurred by his reported in-service stressors, but that onset was due to instability in his home during childhood and the Veteran's condition was exacerbated beyond its normal course by his experience in-service. The examiner commented on the panic attack reported during a flight to Walter Reed but also noted that the Veteran had been on many flights in the past and had enjoyed sky diving. His conversational speech was generally fluent with frustrated tone. He was able to report his history, though the manner in which he did so was at times indirect and guarded. The examiner noted that the Veteran appeared to attribute blame for any of his problems to others. He was manipulative in conversation in attempting to center conversation on points he believed would support his claim. In his August 2017 substantive appeal, the Veteran described an incident in boot camp where he was lead around naked which he considered sexual abuse. He reported witnessing a solider shooting himself while on a training range. He noted his experiences in Pakistan with constant fear and thoughts of suicide and referred particularly to family financial distress. He further noted his experiences on a military flight for evaluation at Walter Reed Medical Center that appeared to be related to fear of flying in an aircraft. In a May 2018 VA treatment note, the Veteran reported that he had been diagnosed with PTSD by a civilian doctor but not by VA. The Veteran did not respond to notices that requested the identity and location of sources of private medical evidence. The Veteran described having anxiety, nervousness, panic attacks and nightmares. The clinician indicated that the Veteran was not interested in an intake appointment. The Veteran left suddenly but was not in distress, but the psychologist was unable to assess his risk but did not appear in imminent danger to self or others. The Veteran also denied thoughts of harm to self or others. See August 2020 Capri, p.123. In another May 2018 VA treatment record, the Veteran was positive for PTSD in a post-deployment screening. See August 2020 Capri, p.133. In a December 2019, a clinician noted a past history of generalized anxiety disorder. See August 2020 Capri, p.9. In June 2020, the Veteran was afforded another PTSD VA examination. The examiner noted that the Veteran did not have PTSD but diagnosed the Veteran with unspecified personality disorder and moderate alcohol use. The Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/ or mood. The Veteran reported several stressors including that he was ordered to run naked during boot camp. He also stated he saw a fellow soldier shoot himself in the foot on purpose. The examiner noted that the Veteran's affect was irritable and that he intended to focus his frustration on VA. The Veteran was responsive to PTSD questions but was guarded or evasive of other questions about himself or his circumstances. Although, the complaints of previous providers focused too much on his past and not enough on his time during the military, he denied experiencing trauma during his time in combat and often redirected back to current frustration. The Veteran also consistently blamed others for his problems, including VA. The examiner's diagnosis of cannabis use disorder was deferred due to being unable to determine current frequency of use. The examiner stated that the Veteran did not meet for claustrophobia at the time and the Veteran did not report anxiety about confined spaces. The Veteran denied feeling depressed. His reports of symptoms suggested that he may have had some symptoms of depression. The examiner stated due to the Veteran's inconsistencies in reporting, diagnosis of depressive disorder could not be determined at the time. The Veteran's reported stressors were not sufficient for a diagnosis of PTSD and could not be definitively linked with the onset of symptoms. However, the Board notes that the Veteran was awarded the Combat Infantryman Badge and his combat stressors were conceded. The examiner found that it was less likely than not the Veteran's mental health conditions were incurred in or caused by in-service injury, event, or illness. The examiner stated that the Veteran's personality disorder and alcohol dependence symptoms were inconsistent and medical records showed that he received psychiatric treatment as a child, yet he denied being diagnosed with any psychiatric condition. The examiner indicated that it was unclear whether the onset of symptoms occurred prior to or during the Veteran's military service. Further, the examiner indicated that the Veteran's reported stressors were not sufficient for a diagnosis for PTSD and could not be linked with the onset of symptoms. In addition, the examiner stated that the Veteran's presentation and report of symptoms during the interview was consistent with the history of blaming others for his problems and poor insight into his illness. The Veteran's personality disorder, unspecified was a correction of the Veteran's previous diagnosis was under DSM-IV. The examiner's medical opinion was in agreement with previous examinations that the Veteran did not meet PTSD criteria and did not demonstrate chronic personality patterns and continued abuse of alcohol. Acquired Psychiatric Disorder The weight of competent and credible evidence service connection for an acquired psychiatric disorder. Although several examiners referred to the Veteran's inconsistent reporting of his pre-service family life, the Veteran is presumed sound at entry on active duty because no psychiatric or behavioral deficits were noted in both enlistment examinations. Because the Veteran deployed to Pakistan in 2001-02 and was awarded the Combat Infantryman Badge, the Veteran was likely in a hostile areas and the reports of exposure to mortars, artillery, and small arms fire and witnessing the death or serious injury of fellow soldiers are accepted as they are consistent with the nature and circumstances of his duties. His reports about engaging in combat action are inconsistent and the witnessing of a soldier shooting himself in the foot did not occur during a combat engagement but rather on a training range. The report of being forced to run naked during boot camp is not credible as this is not consistent with the nature and circumstance of that training and was not consistently reported to clinicians. None of his examiners attributed this event, if it occurred, to any current mental health disorder. Therefore, considering the inconsistent reporting of combat action, the Board will assess the reports of traumatic events as limited to fear of hostile attack and witness of death or injury to other soldiers while in non-combat support. Regarding the onset of symptoms in service, particularly while on deployment, the Board finds the June 2020 VA examiner's report to be highly probative. The examiner looked at all of the available evidence and provided sufficient rationale with his conclusion that service connection was not warranted. The examiner's conclusion is supported by the majority of the evidence of record. The Veteran's two isolated counseling sessions near the end of his 2002 deployment showed symptoms related to inability to adapt to the deployed environment and family concerns and not to any combat or other traumatic events, and these symptoms resolved after two days such that the Veteran was able to complete the deployment. The Board places low probative weight on the October 2003 military psychiatric evaluation because of the inconsistencies on the face of the report and because the Veteran did not receive a disability discharge. The weight of evidence is that this situational phobia was most likely the fear of flying which he noted in the discharge assessment. However, an examiner also noted that the Veteran had been on many flights prior to this event without adverse reactions. As to the Veteran's contentions that his current psychiatric disorder began in service, he certainly can attest to matters of which he has first-hand knowledge, such as experiencing depression, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board acknowledges the lay statements submitted by the Veteran in support of his claim. The Board finds that the Veteran's lay statements regarding his onset and psychiatric treatment have very low credibility and limited probative value because he has been an inconsistent historian. The majority of the evidence reflects that the Veteran did not receive treatment for or report symptoms until the around 2009/2010. The Veteran's service treatment records also do not support the that the Veteran received mental health treatment in service. (continued next page) In summary, the Board concludes that the weight of competent and credible evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107 (b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.