Citation Nr: A21020428 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 181214-1388 DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include claimed posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT An acquired psychiatric disability did not manifest to a compensable degree within one year of separation; and the most probative evidence establishes that the Veteran's current psychiatric symptoms are not caused by any aspect of his active service or any incident therein that was not predicated upon willful misconduct. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1973 to July 1974. This matter is on appeal before the Board of Veterans' Appeals (Board) from a June 2018 Rapid Appeals Modernization Program rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran submitted a Rapid Appeals Modernization Program notice of disagreement and selected the option for a hearing before the Board. Therefore, the Board may consider the evidence of record at the time of the December 2018 RAMP decision, the Veteran's hearing testimony, and any evidence submitted within 90 days of the hearing. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2021. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2021). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 ; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304 (f). Service connection for PTSD requires a medical diagnosis; 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). The United States Court of Appeals for the Federal Circuit stated in Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011) that "[w]e hold that under 38 C.F.R. § 3.304 (f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated" and that "[s]ection 3.304(f)(5) allows a veteran claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor." The Court also held that in diagnosing posttraumatic stress disorder (PTSD), doctors typically rely on the unverified stressor information provided by the patient. Therefore, a doctor's recitation of a Veteran-patient's statements is no more probative than the Veteran-patient's statements made to VA. Therefore, VA is not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred. Opinions given by such professionals are weighed along with all the evidence provided. The mere submission of a medical opinion, pursuant to 38 C.F.R. § 3.304 (f)(5), does not preclude the Board of Veterans' Appeals from making a factual determination regarding the weight to be given that opinion. Where there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has PTSD due to his military service. The Board recharacterizes this claim as being one of entitlement to service connection for an acquired psychiatric disorder to include the Veteran's claim of PTSD. A review of the Veteran's service treatment records (STRs) does not show complaint, treatment or diagnosis for a mental health condition. In March 1974, the Veteran sought treatment for an eye injury in a fight. A clinician diagnosed periorbital contusion with no follow up treatment. The Veteran was awarded non-judicial punishment for assaulting another person and theft of a wallet. Upon separation, the Veteran's report of medical examination found him to not have any neurologic or psychiatric conditions. See November 2016 STR-Medical, p. 23. In January 1979, the Veteran submitted a claim for service connection for residuals of a head injury. VA outpatient records that month show that the Veteran was hospitalized for convulsions secondary to drug abuse. The attending neurologist noted that the Veteran had a history of hospitalizations for depression and schizophrenia and referred to a psychiatrist's evaluation that the Veteran had a severe character disorder. There was no mention of events in service or VA treatment in 1976-77. In an April 2003 claim for pension, the Veteran noted that he had anxiety and depression that began in 1993, and he underwent a VA mental health examination in May 2003. The examining psychologist noted that the Veteran had been attending a VA program for substance abuse and homelessness. Regarding his Navy history, the examiner noted the Veteran's report of some problems getting along with his supervisor who spit on him, after which the Veteran chased the supervisor with a crowbar. However, following the examination, the psychologist diagnosed cocaine and alcohol dependence, substance abuse induced mood disorder with onset during withdrawal, and personality disorder. The psychologist noted that the Veteran was having difficulty adjusting to no longer using substances with no further reference to causation by the reported event in service. In July 2003, the RO granted non-service-connected pension for personality and convulsive disorders. In a March 2006 initial treatment plan note in which the Veteran was found to have a history of depression anxiety and anger. A clinician noted that the Veteran denied any previous psychiatric treatment. The physician wrote that the Veteran's behavioral problems came from a history of substance abuse and criminal behavior. For PTSD, a screening was provided in March 2006, which was negative. In September 2006, a psychiatry substance abuse intake evaluation was made of record. The Veteran stated that he was "put out of service" for gambling, theft and disrespect and that a petty officer spat on him. See December 2016 CAPRI, p. 94, 173, 179. In June 2016 the Veteran submitted a claim of service connection for PTSD. There, he wrote a first class petty officer, who would become a Chief Petty Officer, spat in his face, with the Veteran later going to Captain's Mast (a disciplinary hearing for consideration of non-judicial punishment (NJP)). The Veteran wrote his belief that this incident caused him to have "a very bad attitude" and "outlook on life." See June 2016 VA 21-0781a. A VA examination was provided in January 2017. The VA examiner did not diagnose the Veteran with PTSD but did provide diagnosis of alcohol use disorder in early remission, cocaine use disorder in early remission, substance induced bipolar and related disorder, and antisocial personality disorder, without the possibility of differentiating what symptoms are related to each diagnosis. The VA examiner wrote that prior to service the Veteran suffered from childhood physical and sexual abuse, with the Veteran witnessing his mother's murder and then being in-and-out of jail for both using and selling drugs. During service, the Veteran reported that he was spat on by a petty officer. Post-service, the Veteran's history of drug use and criminal involvement was detailed. The VA examiner found that the incident of being spat on did not cause or exacerbate his diagnosed conditions. As rationale, the examiner wrote that "The NJP infractions occurred after the indicated stressor and antisocial behavior continued relatively unabated after his discharge from active duty-service." See January 2017 C&P Exam. A March 2020 inquiry to the Social Security Administration indicated that the Veteran had not been awarded disability benefits. A hearing was provided before the undersigned VLJ in July 2021. The Veteran testified that he was spat on in the face, and that the incident "flipped [him] out." He further stated his belief that being a loner, having lack of trust and his drug addiction stemmed from this instance. See July 2021 Hearing Transcript. During the hearing, the Veteran testified that he was diagnosed with PTSD at a VA facility in New York in 1976 or 1977. The record does show VA treatment in 1979 with the Veteran's reports of earlier mental health treatment. However, his reporting is very inconsistent and in 1979, he was not diagnosed with PTSD or any disorder associated with events in service. Further in 2003, his mental health symptoms were attributed to substance abuse and personality. He also testified that he was receiving disability benefits from the Social Security Administration (SSA) for both mental health and orthopedic disabilities. Even if SSA benefits were awarded after March 2020, the evidence would not be relevant to his status during the period of the appeal. Following this, in September 2021 the Veteran's attorney submitted medical treatment records that showed a positive PTSD screening, dated November 2019. See September 2021 Medical Treatment Record Government Facility. This evidence is also after the date of the December 2018 RAMP decision and is not relevant to the Veteran's status up to that date. The Board notes that the PTSD screening did not indicate whether DSM criteria was considered, nor the cause of the positive screening. The examiner did not diagnose PTSD but rather only that it should be considered ("rule out"). The November 2019 PTSD Screening may not be considered and regardless is not sufficient to constitute a diagnosis of PTSD. The examiner also noted that the Veteran had a long history of substance abuse including cocaine induced mood disorder and that his behavioral history suggested a personality disorder. This falls short of any clear diagnosis of PTSD and makes no mention of events in service. Moreover, the evidence relates to treatment and the status of his disability after the close of the appeal period in December 2018. In the present case, the Veteran has been diagnosed with an acquired psychiatric disorder, as of the January 2018 VA examination and the record does not show any diagnosis for PTSD. As such, the Board recharacterizes the Veteran's claim as entitlement to service connection for an acquired psychiatric disorder and finds that the first element of service connection has been met, as this disorder was diagnosed during the appellate period. Furthermore, the Veteran has testified as to an in-service incident upon which a fellow Sailor spat in his face. This is sufficient to meet the criteria of the second element of service connection, an in-service event or injury. The Board thus turns to the third element of service connection, a medical nexus. The Board may not provide a nexus opinion. And while the Board acknowledges the Veteran's belief that he experiences an acquired psychiatric disorder due to being spat on in service, neither the Veteran, nor his attorney, has been shown to possess the requisite medical training or expertise to provide a competent opinion regarding the etiology of his psychiatric condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Board turns to the medical evidence of record. The Veteran's medical record does not contain any competent supportive nexus opinions regarding the etiology of the Veteran's psychiatric condition. To the contrary, the January 2017 VA examiner provided a negative nexus opinion. This opinion was reached following an in-person examination, a review of the Veteran's medical records, and consideration of his lay statements, to include the Veteran's contentions enumerated at his Board hearing. As the examination and opinion have sufficiently informed the Board of both the examiner's judgment on the medical questions at issue and the essential rationale for the opinion made, the Board finds the examination to be of probative value. D'Aries v. Peake, 22 Vet. App. 97 (2008). Given that the Board has found the nexus opinion to have probative value, and as there is no competing positive nexus opinion of record, the claim of service connection for his psychiatric condition must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.