Citation Nr: 21070870 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-21 058 DATE: November 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder, post-traumatic stress disorder (PTSD), post-traumatic insomnia, depression, anxiety, adjustment disorder, paranoia, and spectrum psychotic disorder also claimed as claustrophobia, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's current psychiatric disorder began during active service or was a separate disability from his nonservice-connected TBI which has previously been determined to be the result of willful misconduct. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R.§§ 3.301, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 2001 to August 2006.This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in May 2021 instructing the RO to obtain Social Security Administration (SSA) records. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained SSA records, associated them with the claims and readjudicated the claim on appeal. The Board finds the RO substantially complied with the May 2021 remand directives. The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that the events that occurred during his military service caused him to develop an acquired psychiatric disorder. During the March 2021 Board Hearing, the Veteran testified that he conducted an exercise called an escape trainer. This exercise required him to enter a metal capsule with water-tight doors and red lights on the inside. During the exercise, water poured into the room. The host of the training told him that it was not waterproof. The ladder to get out of the metal capsule was missing. The Veteran did not see a way of escaping. He panicked and started freaking out. The Veteran said was not hospitalized but was told he would be sent to shore duty. He went to sick call. They gave him seasick pills, some antidepressants and told to suck it up. Thereafter, the Veteran also stated that he went to mental health treatment. He avoided gatherings or anything that reminded him of the in-service incident. He also reported having a meltdown when he visited his mom in 2014. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With regard to the second element, veterans are entitled to a presumption that injuries incurred during active service were "incurred in the line of duty" and not the result of the veteran's willful misconduct. 38 U.S.C. § 105(a) ("An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in [the] line of duty and not the result of the veteran's own misconduct ..."); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("By its plain terms, section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the veteran's misconduct."). This presumption may be rebutted if the government demonstrates by a preponderance of the evidence that the in-service injury was caused by or resulted from willful misconduct or by abuse of alcohol or drugs. Holton, 557 F.3d at 1367 (Fed. Cir. 2009) A November 2001 service treatment records (STR) showed the Veteran underwent a mental health evaluation. During the evaluation, the Veteran denied any history of delinquency or arrest. The examiner described the Veteran as a well-groomed man with no distress, alert, oriented, and attentive. There was no evidence of formal thought disorder. The Veteran was diagnosed with claustrophobia and adjustment disorder with mixed depressive and anxiety symptoms. He was provided Paxil and Clonazepam. During the November 2001 follow up appointment, the Veteran reported that he benefited from the use of medication. However, we wanted to stop the use of Paxil and only take Clonazepam when necessary. The examiner noted that the Veteran was fit for service but should not be assigned to submarine duty. He should be transferred to the fleet for other duties. The examiner also noted that there was no need for outpatient mental health follow up. The Veteran underwent a psychological assessment in October 2004 at Paradise Valley Hospital. The social worker wrote that the Veteran had no prior history of mental illness, did not use drugs, consumed alcohol socially, avoided going out, attended church but could not name his church. The social worker did not provide a diagnosis for the Veteran's condition. The Veteran was evaluated in April 2006 for PTSD. The Veteran was involved in a bike accident, in which his bike was being stolen and he jumped on the rear of it, eventually falling off and hitting his head with loss of consciousness. He spent several weeks at Paradise Valley Hospital and was then sent to Palo Alto for 2 weeks, where further neuropsychiatric observation and testing was undertaken. The examiner stated that according to the material contained in the claim file showed extensive neuropsychiatric studies, with a final impression of moderate traumatic brain injury (TBI), cognitive disorder not otherwise specified, moderate TBI with bilateral frontal lobe involvement, sleep apnea with hypersomnia during the day, and frontal lobe dysfunction. However, the examiner wrote that the evidence of record did not show symptoms of PTSD. He was calm, cool, and collected. He had a diminished libido and low-grade depressive symptoms because of that. There was a tendency to isolate and withdraw, with a reduction of chasing activity in the sexual arena. He did not have irritability, anger, nightmares, flashbacks, intrusive "thoughts, hypervigilance, increased startle reaction, etc., or other symptoms suggestive of PTSD. The examiner reviewed the medical records and found that the case was aptly summarized by the PEE in the rear of the chart. The Veteran stated he had a normal childhood prior to entry. He also stated he entered the military at age 30 because he was not going anywhere. He had a series of small, but limited jobs and realized that he had to do something that was career oriented. Therefore, he joined the navy "to get out of Dodge." The examiner concluded by writing that the Veteran did not have PTSD, but the evidence suggested a mood disorder secondary to the sequelae of the closed head injury. The examiner also noted dementia secondary to head injury, adjustment disorder secondary to dementia, with insomnia and low-grade depressive disorder, not otherwise specified. The head injury was found to be ineligible for service connection because it was the result of the Veteran's willful misconduct related to a motor vehicle accident involving intoxication. See April 2007 Administrative Decision. Post-service treatment records indicate the Veteran was diagnosed with or reported symptoms of more psychiatric disabilities. See e.g., December 2007 Psychology Consult (cognitive disorder not otherwise specified secondary to head trauma, depressive disorder not otherwise specified, alcohol dependence); March 2011 Intake Assessment (anxiety, depression); October 2012 MSLA Disability Benefits Questionnaire (diagnosis of alcohol dependence and cannabis dependence; examiner opined that the Veteran's current mental conditions were less likely than not related to the submarine school incident and the treatment for same shown in service); February 2013 SSA Mental Status Evaluation (alcohol abuse); August 2014 Mental Health Note (paranoia). The Veteran completed a VA examination in February 2015. The examiner wrote that the Veteran had a diagnosis of delusional disorder and mild neurocognitive disorder due to traumatic brain injury (TBI). He wrote that it was not possible to distinguish the symptoms between the two diagnoses. The Veteran reported that he leaves his blinds up all the time so he can watch outside to monitor who else maybe watching him. He also reported having a meltdown in 2014. He was placed in the psych ward. The examiner opined that the condition claimed was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran first began to have delusions of persecution while in service. During a training exercise, he reported feelings that those in charge were out to harm him and that the training exercise was an elaborate set up during which he would be killed. Initially, this was diagnosed as claustrophobia because of his inability or unwillingness to complete the training exercise. He was then later diagnosed with adjustment disorder. Further complicating matters, the Veteran suffered a mild TBI while in service. A May 2015 Deferred Rating noted that the examiner in February 2015 linked the Veteran psychiatric disability to military service, but the Veteran was "written out" for his TBI with residuals due to motorcycle accident when he was under the influence. A 2006 VA examination was conducted to determine if a psych condition existed separate from the TBI. The examiner found a cognitive disorder, mood disorder and dementia due to the TBI. These findings were not considered in the recent VA psych examination in February 2015. Therefore, an addendum opinion was requested to consider these findings and provide an opinion in light of the previous findings. In the June 2015 addendum opinion, the clinician wrote that the majority of the mental health information in the Veteran's STRs are related to his TBI injury in 2004 that was considered "willful misconduct." The Veteran had a PTSD examination in April 2006 while he was still in the military and was diagnosed with dementia secondary to closed heard injury and adjustment disorder secondary to dementia. As indicated, both diagnoses were related to the Veteran's TBI. The review of subsequent VA mental health records showed mainly problems related to his TBI incident in 2004. For example, based on a February 2010 VA examination, the Veteran was diagnosed with cognitive disorder due to TBI. There does not seem to be a solid link between the Veteran's current mental illness and the brief mention of claustrophobia in the 2001 consult. Therefore, based on the review of all the available pertinent information, the clinician opined that it is unlikely that the Veteran has a psychiatric disorder that is independent of this TBI and began in military service. See also March 2017 VA medical opinion. The Board acknowledges the Veteran's contentions that his current psychiatric disabilities are related to his duties in service. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a lay person is not considered competent to medically attribute a psychiatric disability to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the objective medical evidence of record answered this question. STR showed the Veteran was treated for acute claustrophobia. He later experienced a motor vehicle accident and the results of that accident caused him to have a TBI. Medical evidence of record did not support a finding that the Veteran's had psychiatric disability that was not related to his TBI. Pursuant to the April 2007 Administrative Decision, the disabilities results from the TBI cannot be service connected because the motor vehicle accident was the result of the Veteran's willful misconduct. Accordingly, the criteria for entitlement to service connection for an acquired psychiatric disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for psychiatric disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.