Citation Nr: 21072871 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-42 179 DATE: December 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression and anxiety, is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have an acquired psychiatric disorder that is shown to be causally or etiologically related to service. 2. A personality disorder is not a disease or injury subject to compensation benefits within the meaning of applicable law. 3. The Veteran's current tinnitus is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and anxiety, are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 4.125. 2. The criteria for service connection for bilateral tinnitus are not met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to September 2007. Additional VA medical records were received after the most recent supplemental statement of the case in March 2019. As the records are essentially duplicative of evidence already of record or not pertinent to the issues being denied herein, a remand for agency of original jurisdiction (AOJ) consideration is unnecessary. See 38 C.F.R. § 20.1304; Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law is not appropriate when it imposes additional burdens with no benefit flowing to the Veteran). 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran's claim for service connection for PTSD, depression and anxiety was received in December 2016. On his April 2018 notice of disagreement (NOD) the Veteran asserted that he has had PTSD ever since service due to the constant fear of being attacked while serving in Iraq. At his September 2021 hearing, the Veteran asserted that he has suffered from PTSD, anxiety and depression ever since service due to stressful events that occurred during active duty. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as psychosis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case the Veteran does not claim, and the evidence does not show, that the Veteran has ever had a psychosis. Consequently, service connection is not warranted for a psychosis on a presumptive basis. Service connection for PTSD requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). See 38 C.F.R. § 3.304(f). For cases certified to the Board after August 4, 2014, a diagnosis of PTSD must be in accordance with the DSM-5. 38 C.F.R. § 4.125. Congenital or developmental defects, to include personality disorders and mental deficiency, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; see also, Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA's regulation that a congenital disorder is not a disease or injury as contemplated by 38 U.S.C. §§ 1110, 1131). Service connection may be granted for congenital diseases, as opposed to congenital defects. See 38 C.F.R. § 3.303(c); VAOPGCPREC 67-90, VAOPGCPREC 82-90. VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90. If a defect is subject to superimposed disease or injury, service connection may be warranted for the resultant disability. Id. The Board also acknowledges that service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127; Carpenter v. Brown, 8 Vet. App, 240 (1995). For claims filed after October 31, 1990, direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and was not the result of the Veteran's own willful misconduct or the result of the Veteran's abuse of alcohol or drugs. 38 U.S.C. § 105 (West 2014); 38 C.F.R. § 3.301(a) (2016). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). Service treatment records reveal no complaints or findings of PTSD, anxiety or depression. In July 2007, the month before his discharge from service, the Veteran filled out a post deployment health assessment after serving in Iraq. The Veteran reported on the form that he had seen dead bodies. He denied engaging in combat where he discharged his weapon. He said that he did not feel in danger of being killed. A depression screen and PTSD screen were negative. The Veteran filled out a PTSD checklist-military version and answered none to all of the questions. He indicated that he had not changed since the stressful military experience. The VA clinical records contain March 2009, March 2010 and February 2012 PTSD screening tests and depression screening tests which were all negative. March 2010 and October 2014 VA treatment records note that the Veteran denied a history of depression, anxiety or PTSD. VA treatment records prior to January 2015 reveal no psychiatric complaints or findings. VA treatment records from January 2015 and later contain occasional diagnoses of anxiety disorder and PTSD. On VA examination in January 2017 the VA examiner stated that because of the Veteran's refusal to answer some questions, and due to discrepancies, inconsistencies and conflicting information, she was unable to diagnose PTSD. She diagnosed the Veteran as having a stimulant use disorder and a personality disorder. She opined that it was less likely than not that the stimulant use and personality disorders were related to service. The Veteran was again provided a VA psychiatric examination in July 2018. The VA examiner examined the Veteran and reviewed his medical records. He opined that the Veteran does not have PTSD. He diagnosed the Veteran as having an unspecified personality disorder, a stimulant use disorder and an alcohol use disorder. It was his opinion that the Veteran's personality disorder, stimulant use disorder and alcohol use disorders were not related to the Veteran's military service. Service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is not warranted. In this case, the most probative evidence indicates that no acquired psychiatric disorder was incurred during service, or manifested within a year thereafter, or for years after his discharge from service in September 2007. Evidence of record also does not provide a basis for establishing service connection for any psychiatric disorder. The Board considers the VA medical opinions contained in the January 2017 and July 2018 VA examination reports to be of great probative value in this appeal. The examiners clearly opined that the Veteran's current psychiatric disorders are a personality disorder and substance abuse disorders. The VA examiners provided complete rationale for the stated opinions, supporting the opinions by utilizing their medical knowledge as well as their review of the entire claims file and citing to evidence included in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In contrast, concise statements from VA treatment providers dated subsequent to December 2014 indicating that the Veteran had PTSD, anxiety and depression are considered to lack probative value, due to their general nature and lack of proffered rationale. Here, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether any present psychiatric disorders are related to events during active service weighs against the claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Thus, there is no basis upon which to conclude that any present psychiatric disorder was incurred in or aggravated during military service. 38 C.F.R. §§ 3.303. The Board notes that the Veteran's mental health symptomology has been determined to be causally connected to his diagnosed personality disorder by VA examiners in the January 2017 and July 2018 VA examination reports. Personality disorders are not diseases or injuries under VA regulations; therefore, they are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c). The Board acknowledges that service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2016); Carpenter v. Brown, 8 Vet. App, 240 (1995). However, in the present claim, there is no competent credible evidence of such. Finally, with regard to the remaining diagnosed alcohol and substance abuse disorders, the Board finds that the Veteran is also not entitled to service connection. As noted above, service connection cannot be granted for an alcohol- or drug-related condition as a primary disability. The only other evidence of record which relates the Veteran's claimed acquired psychiatric disorder to his active military service are his own statements. With regard to his assertions that he has had PTSD, depression and anxiety ever since service, the Board finds that these statements are not credible. They are contradicted by the VA treatment records prior to January 2015 in which the Veteran denied PTSD and depression and by the VA PTSD/Depression screenings of the Veteran which were negative. Furthermore, lay statements that any present psychiatric disorder was incurred during or as a result of service, draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's claimed psychiatric disorders falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Therefore, the criteria to establish entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, have not been established, either through medical or probative lay evidence. Furthermore, service connection for a personality disorder and substance/alcohol abuse disorders is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). 2. Entitlement to service connection for tinnitus. The Veteran submitted his claim for service connection for tinnitus in August 2017. On his April 2018 notice of disagreement, the Veteran reported that he had had tinnitus ever since his exposure to loud noises during service. He asserted that when he was getting out of service no one asked him if he had ringing in his ears and that if they would have asked him that he would have said yes. On an August 2018 VA Form 9 the Veteran asserted that he first developed tinnitus during rifle qualification. He stated that he did not know what tinnitus was until he started the VA process and that his lack of knowledge during service should not be held against him. At his September 2021 hearing, the Veteran reported that he first had tinnitus right after field qualification for the M16A2 rifle in boot camp. He said that his hearing protection fell out as he was shooting and his right ear went completely deaf. He testified that he had three days of ringing and then it started to die down, but then it came back. The Veteran's STR contain no complaints of hearing loss, of ringing in the ears, or of tinnitus. The Veteran denied having ringing in the ears when he completed a post deployment questionnaire in July 2007, a month before discharge from service. When examined for discharge from service in August 2007 the Veteran denied ever having any ear trouble. August 2007 audiological testing of the Veteran's hearing acuity just prior to discharge from service revealed normal hearing. The VA treatment records indicate that the Veteran first reported tinnitus in April 2012. On VA audiological examination in October 2017 the Veteran was found to have normal hearing in both ears. The Veteran reported that he could not remember when his tinnitus started. The VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner noted that no threshold shifts were noted in service and that the Veteran marked "no" for ringing in the ears on the (July 2007) Post Deployment Health Assessment. In this case, there is no indication that the Veteran was diagnosed with tinnitus within one year of separation from service and there is no competent evidence documenting the presence of symptoms of the disease within one year. As such, entitlement to service connection for tinnitus as a chronic disease on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Board does not find the Veteran's statements that he had tinnitus during service to be credible. He stated that he did not know what tinnitus was during service and that he should have been asked if he had ringing in the ears. However, this is contradicted by the STR which indicate that during service the Veteran was asked if he had ringing in the ears and that at that time he responded that he did not have ringing in the ears. (Continued on the next page) While the Veteran believes his tinnitus is related to an in-service exposure to rifle noise, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires medical knowledge and the interpretation of acoustic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to an October 2017 VA medical opinion. In this case the most probative evidence is the October 2017 VA audiologist's opinion that the Veteran's current tinnitus is unrelated to service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the preponderance of the evidence is against the Veteran's claim and service connection for tinnitus is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.