Citation Nr: 21067602 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-56 598 DATE: November 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT An acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, was not documented during active-duty service, nor was a psychosis shown within one year of separation from service, and the weight of the evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to September 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record and has been reviewed. In this regard, the Board must apologize to the Veteran for the delays in the full adjudication of his claim. Lastly, the Board has re-characterized the issue of entitlement to service connection for PTSD, to encompass entitlement more broadly to service connection for an acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection In general, to establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also 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). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including psychosis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. 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). 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD and depression. Service connection for PTSD 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). If a stressor claimed by a veteran is related to a veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA shall request verification of service from a service department. 38 C.F.R. § 3.203. The United States Court of Appeals for Veterans Claims (Court) has held that a service department determination as to an individual's service shall be binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Turning to the evidence, the Veteran does not allege that he engaged in combat or that his stressor to support a diagnosis of PTSD is combat-related. Rather, he asserts that he developed a psychiatric disorder in association with an event that occurred while aboard a Navy ship in the Indian Ocean many years ago. He testified that a fellow Marine was shot and wounded while target training off the back of the ship during a training exercise. In a 2015 statement, the Veteran also reported that he developed anxiety and panic attacks thereafter. He further reported that loud noises make living intolerable, and they make him disassociate from socializing. See also Testimony of Witness, Board Hearing, April 2021. At the outset, the Board notes that the Veteran's stressor has been verified by a Joint Services Records Research Center (JSRRC) representative and is therefore conceded. See VA 21-0820 Report of General Information, May 2019. However, service treatment records are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder. On separation from service in 1983, no mental health impairment was reported and in a report of medical history, the Veteran denied a history of depression or excessive worry, or nervous trouble of any sort. It is important for the Veteran to understand that at this point it is the Veteran himself that provides evidence against his own claim. Neither the service treatment records nor personnel records reference the Veteran's claimed psychiatric symptoms. Moreover, the service personnel records fail to document any markers indicative of any behavioral changes which might be expected of someone who experienced personal trauma, as described by the Veteran. See 38 C.F.R. § 3.304(f)(5). Likewise, the record shows that the Veteran was not diagnosed with any mental health disorders in the first year following his September 1983 separation from active duty. Therefore, the Board finds that the presumptions found at 38 C.F.R. §§ 3.307, 3.309 do not apply to the current appeal. After service, a single mental health treatment record in February 2013 noted an assessment of the Veteran "likely" having PTSD secondary to a severe episode of physical abuse by his aunt when he was 5 years old. Such a piece of evidence provides more evidence against this claim, indicating not only PTSD caused by another stressor that is not related to service, but by the failure of the Veteran to cite the stressor that he did before the undersigned. The Board notes that a sole behavioral assessment in a post-service treatment note of "likely" having PTSD is not the same as having a DSM diagnosis of PTSD. Tellingly, a review of the Veteran's remaining post-service mental health treatment records are negative for a DSM diagnosis of PTSD related to his conceded in-service stressor. See e.g., Negative PTSD Screenings from December 2012 and February 2018; Negative PTSD Assessment from September 2014; see also VA Mental Health Treatment Notes from May 2013 (Veteran reported he began using cocaine in early adulthood and has used regularly since then except for during periods of incarceration), July 2014 (Veteran denied symptoms of psychosis), and December 2018 (no DSM diagnosis of PTSD). In June 2019, the Veteran underwent a VA examination to determine if he has PTSD. On examination, the Veteran was diagnosed with stimulant use disorder, cocaine, severe, in early remission and alcohol use disorder, severe, in early remission. Importantly, the examiner found the Veteran did not have a DSM diagnosis of PTSD. After interviewing the Veteran and providing a detailed discussion of the Veteran's service and post-service mental health treatment records, the examiner opined that the Veteran failed to meet any current mental health diagnosis related to or secondary to his military career. In support, the examiner reported the Veteran has a complex mental health presentation related to decades of alcohol and drug addiction, homelessness, criminal behavior/incarcerations and at least one incident of pre-military history of physical abuse. The Board finds the June 2019 VA opinion the most probative evidence of record because it is provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by the evidence found in the record including the Veteran's lay statements and controlling medical principles. Also, at this time, this opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that it is the most probative evidence of record. At this point, the Board points out that the weight of the evidence is against even a finding that the Veteran meets the criteria for a DSM diagnosis of PTSD. The best evidence in this case indicates that the Veteran does not have PTSD. Nonetheless, even if the Board were to assume, without conceding, that the Veteran actually has PTSD, there is no credible or probative evidence linking any assessment of PTSD, or any other mental health condition to traumatic events in service. In fact, the first positive screening for PTSD (i.e., not a DSM diagnosis) appears in the record in February 2013, which is 30 years after leaving service. As such, the Veteran's multi-year gap between reports of mental health issues and service is one factor, among others, as discussed immediately above, weighing against a finding of continuity of symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). Accordingly, as the record is absent a finding of PTSD related to an in-service stressor, service connection is not warranted for PTSD on a direct or presumptive basis. The Board has reached the above conclusions because regardless of whether the Veteran has a verified stressor, the claim must be denied given the findings that PTSD was not incurred on active duty or within one year after service, did not continue since service, and his current mental health conditions are not due to his military service. See June 2019 VA PTSD Examination. The Board also acknowledges that the Veteran was assessed with "likely" having PTSD in February 2013 due to childhood trauma, prior to entering the military. However, at the time of the Veteran's August 1979 entrance examination to service he specifically notified the examiner that his medical history did not include depression, excessive worry, or nervous trouble of any sort and on examination it was opined that his psychiatric health was normal. As such, the Board finds the August 1979 entrance examiner's opinion that the Veteran did not have a psychiatric disorder upon entry onto active duty more probative than the February 2013 mental health examiner's opinion that his current psychiatric disorder started in childhood (i.e., pre-existed military service). The Board has reached this conclusion because the August 1979 entrance examination is consistent with what the Veteran told the examiner at entry to service (i.e., he did not have a history of depression and nervous trouble) and was contemporaneous with his entry onto active duty, whereas the February 2013 examiner's opinion is rendered more than 30 years after the Veteran's service. In this regard, the Board notes that a review of the record on appeal does not contain any medical evidence documenting the Veteran's pre-active duty complaints, diagnoses, or treatment for any acquired psychiatric disorder, including PTSD. As such, the Board finds that the February 2013 examiner's opinion as to whether the Veteran "likely" has PTSD due to events that pre-existed service lacks probative value because it is not supported by any clinical evidence including pre-service and service medical records. Accordingly, the most probative evidence of record as to the Veteran's mental health condition at entry to service is the August 1979 entrance examiner's opinion that the Veteran did not have a psychiatric disorder upon his entry onto active duty. Put simply, the Board finds there is no evidence that the Veteran's acquired psychiatric condition including PTSD preexisted service. See 38 C.F.R. § 3.304(b). This finding does not suggest that the pre-service childhood abuse did not occur, simply that when the Veteran entered service he did not have, for example, PTSD, or depression at that time. With regard to the Veteran's claim for service connection for an acquired psychiatric disability other than PTSD, the Board notes the fact that VA treatment records document that he has a long history of drug and alcohol abuse. However, the Board notes that compensation cannot be awarded pursuant to 38 U.S.C. § 1131 either for a primary drug abuse disability incurred during service or for any secondary disability that resulted from primary drug abuse during service. See Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a Veteran's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). Therefore, to the extent that the Veteran is claiming service connection for an acquired psychiatric disorder due to his drug abuse and/or alcohol abuse, the claims are denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). In sum, a psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran has a diagnosed psychiatric disorder that is causally related to service. Accordingly, the preponderance of the evidence is against the claim, and it is denied. Lastly, in reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.