Citation Nr: 21067475 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-34 367 DATE: November 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed acquired psychiatric disability, to include PTSD, insomnia, depression or panic disorder. 2. An alcohol use disorder due to primary alcohol abuse is not a disability for which service connection may be granted. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from October 1984 to November 1988. The Veteran also had active military service from December 1988 to March 1990 that is dishonorable for VA purposes. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in October 2018, July 2019, and May 2021 for further evidentiary development, including medical examinations and opinions to clarify the nature and etiology of the Veteran's claimed psychiatric disabilities. Accordingly, as to the characterization of the claim, although the Veteran initially submitted a claim of service connection for PTSD alone, his medical record indicates diagnoses for other psychiatric disorders. Therefore, the Board has re-characterized the PTSD claim to include entitlement to service connection for an acquired psychiatric disorder, in order to contemplate the Veteran's psychiatric symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Acquired psychiatric disability, to include PTSD Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Specifically, for PTSD claims, the record must include (1) medical evidence diagnosing PTSD in conformance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV or DSM-5) criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). Notably, VA implemented use of DSM-5, effective August 4, 2014. The Secretary, VA, has determined, however, that DSM-5 does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). Since the Veteran's appeal was certified to the Board after August 4, 2014, DSM-5 is for application. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Analysis The Veteran asserts that he has a psychiatric disorder, namely PTSD, that is related to his military service. The Veteran has stated that he has dreams of being burned alive related to a burn he incurred when he accidentally touched a burner barrel on the USS Camden, and that he is haunted by memories of an incident when he was hit by another soldier and fell and hit his head on a table. He also asserts that he has trauma from a partial amputation of his finger due to sticking his finger in a hole like a cork to stop a leak. Finally, he asserts that his psychiatric issues have led to him abuse alcohol. Regardless of whether the Veteran's in-service stressor event has been verified, the threshold consideration for any service connection claim is the existence of a current disability. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a current PTSD diagnosis consistent with 38 C.F.R. § 4.125 (a). The Veteran's service treatment records do not show any psychiatric treatment, complaints, or diagnoses. The records show that he was treated for first and second degree burns around the elbow on his right arm in April 1985. In October 1986, he was treated for a laceration on his head above his left eye which occurred when the Veteran tripped and struck his head on a table. In May 1987, the Veteran was placed on Antabuse for two weeks. On a report of medical history for separation in October 1988, the Veteran reported that he took Antabuse daily, and denied nervous trouble. Clinical examination noted alcohol abuse by history. Post-service VA Medical Center (VAMC) treatment records show the Veteran sought treatment in March 1994 due to driving while intoxicated. He was assessed as alcohol dependent and entered a treatment program, but was terminated in April 1994 due to non-compliance with the treatment. In February 1995, he underwent a mental health evaluation and diagnostic testing for a VA substance abuse treatment program. He had alcohol yearly on New Year's Eve from age 12 until age 18, when he began drinking on weekends. While in the military, he drank when in port, but began drinking more after his divorce and when his mother passed away in 1993. The diagnostic impression was alcohol dependence, middle stage. Additional records indicate he participated in the Intensive Outpatient Program for substance abuse from March 1995 until termination in October 1996 due to non-compliance. Additional VA treatment records dated in May 2010 indicate the Veteran was seen for a mental health assessment at the request of a service officer due to concerns of PTSD. The Veteran reported that he worked a graveyard shift that disrupted his sleep schedule, nightmares, irritability, and compulsive gambling that was causing his current financial difficulties. The examiner, a licensed social worker, diagnosed major depression, recurrent; problematic gambling; rule-out PTSD; panic disorder without agoraphobia; and alcohol dependence in partial remission. The examiner also noted that it was difficult to assess for PTSD due to the current level of stress and that the Veteran was overwhelmed by financial stressors related to his gambling problem. When seen in May 2011, the Veteran denied alcohol use and psychiatric examination was normal. The diagnosis was bereavement and alcohol abuse by history. At a June 2011 mental health visit, the Veteran reported that he had gone nine years without alcohol, denied any use since 2002, and reported that he did not need treatment. A September 2011 psychiatry note indicates the Veteran called and stated he was no longer interested in receiving services. At a January 2012 scheduled checkup, the Veteran reported drinking alcohol the past year and a PTSD screen was positive. The Veteran was offered services but felt he did not need them. In April 2015, the Veteran underwent a VA examination for PTSD, at which time the examiner concluded that his symptoms did not meet the diagnostic criteria for PTSD, but confirmed a diagnosis of alcohol abuse. The Veteran reported attending outpatient addiction treatment for alcohol before he joined the military as well as attending outpatient treatment for alcohol dependence around 1997 or 1998. He drank wine and had a six pack of alcohol about once a week. The examiner noted that the Veteran's reported stressor related to the finger was not life-threatening and the Veteran reported only one symptom, nightmares. The examination was terminated early by the psychologist due to the Veteran's hostility. In May 2016, a VA treatment note indicates the Veteran had a negative and a positive depression screen the same day. An alcohol screen was negative. In March 2019, the Veteran underwent an additional VA examination for PTSD. The examiner noted that the Veteran's only reported stressor of putting his finger in a hole to stop a leak was not adequate to support a diagnosis of PTSD as it was not related to a fear of hostile military or terrorist activity or in-service personal assault. The examiner noted that the Veteran did not report enough symptoms requisite of a mental health disorder or symptoms that caused clinically significant distress or impairment in important areas of functioning. The examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD. In December 2019, the same examiner provided an addendum opinion after complete review of the Veteran's claims file, medical and military records. The examiner opined that the Veteran's currently diagnosed alcohol use disorder was less likely than not due to service or an in-service event, injury or disease. The examiner reasoned that the Veteran reported drinking prior to service and had entered the service because he was drinking and partying. The Veteran's service records were silent for an event that was associated with a traumatic stressor or drinking. His service records showed a history of disciplinary issues for insubordinate conduct, unauthorized absence, and alcohol abuse and that he reported symptoms of alcohol abuse that met the criteria for current alcohol use disorder, mild. The examiner noted that the prior positive screenings for PTSD and depression in 2010, 2012, and 2016 were based on self-report by the Veteran and were not diagnostic tools. There was no formal diagnosis of PTSD or depression by the clinician based on either DSM IV or DSM V diagnostic criteria and the Veteran did not report current symptoms that met DSM V diagnostic criteria. The examiner further noted that the Veteran did not report flashbacks of a personal assault or being burned alive. He did report failed marriages and relationships due to others' dishonesty, and reported distrust, paranoia, and being antisocial. In March 2020, the Veteran underwent a subsequent VA examination for PTSD at which time the psychologist rendered a diagnosis of insomnia disorder and that the Veteran's symptoms were descriptive of sleep apnea. The examiner opined that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD. The examiner reasoned that there were no markers to support the Veteran's reported stressor of personal assault in the service records. In June 2021, an VA addendum medical opinion was obtained by a psychologist. Upon complete review of the Veteran's claims file, medical and service records, and history, the psychologist opined that the Veteran's claimed condition of insomnia was less likely than not incurred in or related to service. The examiner opined that the Veteran did not have a diagnosis of sleep apnea as sleep apnea is a medical condition that causes difficulty with sleep patterns. The examiner noted that the Veteran did not have a standalone diagnosis of insomnia that was unrelated to medical issues and that documentation of reported difficulty with sleep began years after service. Regarding PTSD, the Board finds that the weight of the competent and credible evidence is against finding that the Veteran has a current diagnosis of PTSD. Notably, despite numerous VA mental health examinations, no mental health professional rendered a diagnosis of PTSD at any point during the pendency of the appeal. While there was a positive screening for PTSD, as noted by the December 2019 VA examiner, a screening is based on self-report and is not an actual diagnosis. As such, the Board concludes that the Veteran has not presented competent evidence showing that he has a current diagnosis of PTSD. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). There are no other medical opinions to the contrary. Although the Veteran, as a lay person, is competent to report many psychiatric symptoms he has experienced at any given time, he is not competent to diagnose a psychiatric disability or render a competent medical opinion on the questions of causation because answers to such questions require medical expertise in the area of psychiatric disorders and falls outside the realm of common knowledge of a lay person. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). The weight of the evidence shows that there is no current diagnosis of PTSD. Consequently, the Veteran's belief that he has PTSD due to service is found to be not credible and of no probative value. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Regarding insomnia, the June 2021 VA examiner attributed the Veteran's insomnia symptoms to his medical issues, noting that he did not meet the criteria for a separate diagnosis of insomnia. Further, although a VA consultation by a social worker in 2010 noted diagnoses of major depression and panic disorder without agoraphobia, multiple VA examinations by psychologists during the pendency of the claim have not identified any current diagnoses of major depression or panic disorder. The Veteran has not reported any symptoms of panic since that date at VA outpatient examinations or compensation examinations. Additionally, the December 2019 VA examiner specifically noted that the Veteran's records did not meet the full criteria for a DSM V diagnosis of depression or any other acquired psychiatric disorder and that the Veteran did not report current symptoms requisite of a diagnosis of depression. Thus, in the absence of a current disability, as identified by medical diagnosis, there is no valid claim for service connection. Lastly, regarding the Veteran's diagnosis of alcohol abuse, direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. § 1110 and 38 U.S.C. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id. However, service connection may be granted for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. See Allen, 237 F.3d 1368 at 1375. A veteran must adequately establish, through clear medical evidence that an alcohol or drug abuse disability is secondary to or caused by a primary service-connected disorder, and not due to willful wrongdoing. Id. at 1381. In this case, service connection for a substance abuse disorder may only be allowed where there is clear medical evidence that it is the direct result of a service-connected disorder, and such has not been shown in this case. Accordingly, the Board finds that the weight of the probative evidence indicates that the Veteran's symptoms do not meet the DSM criteria for a diagnosis of PTSD, or any other acquired psychiatric disorder. Therefore, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for an acquired psychiatric disorder is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.