Citation Nr: 21005344 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-16 940 DATE: February 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and is denied. FINDING OF FACT Acquired psychiatric disorder did not manifest in service and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for acquired psychiatric disorder have not been met. 38 U.S.C. § 1101, 1110, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with approximately five months of creditable service in the United States Army between August 1973 and June 1974. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Houston, Texas Regional Office (RO). The Veteran requested a Board hearing in his July 2015 substantive appeal (VA Form); however, in January 2018 correspondence, the Veteran withdrew his Board hearing request. Accordingly, the Veteran’s hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). The Board has recharacterized the issue as an acquired psychiatric disorder in consideration of the applicable evidence of record. When a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board remanded the issue on appeal for additional evidentiary development in March 2019, The Board finds that the RO has substantially complied with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran contends that an acquired psychiatric disorder was incurred in, aggravated by, or otherwise attributable to, active duty service connection. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Evidence and Analysis The Veteran’s service treatment records (STRs) include an August induction report of medical examination in which a military clinician indicated a normal clinical evaluation of the Veteran’s psychiatric status. In the associated induction report of medical history, the Veteran indicated that he did not know whether he had had or had depression or excessive worry but denied any nervous trouble. Otherwise, STRs include neither complaints of, treatment for, or any diagnosis of, a psychiatric disorder or dysfunction. The Veteran’s military personnel records reflect that the Veteran completed basic training and was assigned to a cavalry unit for on the job mechanical maintenance training. He was processed for discharge because of repeated violations of military rules including standards of appearance, missing formations, shrinking duty, requiring constant supervision, absent without official leave (AWOL), and involvement in a civilian infraction for petty theft. He was AWOL from January 14 to January 29, 1974 and from February 8 to May 3, 1974. He was credited with four months, 28 days of service which corresponds to the service from enlistment on August 31, 1973 to January 29, 1974. The remaining time until final discharge was not credited as active duty. He did not object or provide a response to the administrative discharge action. In June 2013, VA received mental health records from Correctional M.C. These records show that the Veteran was treated for major depressive disorder, recurrent, severe from sporadically from October 2007 through June 2013. In a July 2013 statement, the Veteran contended that he had PTSD that had never been addressed clinically. The “lack of treatment,” according to the Veteran, brought about severe depression and problems with addiction. In a statement of December 2013, the Veteran reported that he was forced into the Army when he was 16 years old. However, he was inducted 13 days after this 17th birthday and not discharged for underage enlistment. The Veteran also reported that he was “threatened” in service with going to Vietnam. Since this threat, the Veteran contends that he has suffered from severe depression; since separation from service, the Veteran contends that he has suffered from other symptoms of PTSD. And, in his May 2015 substantive appeal (VA Form 9), the Veteran wrote that during active duty he was committed to a civilian hospital in T., Texas and other civilian hospitals. The Veteran is currently incarcerated at a correctional facility in H., Texas. VA has special procedures for handling the scheduling of VA examinations for incarcerated veterans. The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the particular circumstances of confinement, as those individuals are entitled to the same care and consideration given to non-incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190 (1991). However, VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him/her the necessary examination at the closest VA medical facility. See Bolton v. Brown, 8 Vet. App. 185, 191, (1995) (discussing 38 U.S.C. § 5711). In August 2019, VA received a collection of documents from the Veteran. The Veteran submitted a record of care at a private hospital from May 28, 1974 to July 30,1974. The location of the private hospital is unknown and it is over-stamped with “Records Destroyed.” The diagnosis was drug dependence, other psycho-stimulants, and antisocial personality. This treatment was during non-creditable service time and for mental health disorders for which service connection is not available. The other documents comprise a 2019 correspondence exchange between the Veteran and a Veteran’s advocacy group coordinator concerning the Veteran’s appeal for benefits. In pertinent part, the Veteran expressed his frustration with the VA benefits process in light of his medical and psychological history. The Veteran underscored his on-going depression and drug-use problems. The coordinator reported back with a copy of an “order” send to the Board. The Board notes that there are many such exchanges associated with the claims file This same month, the Veteran submitted a copy of an April 2019 letter from the Texas Health and Human Services Commission. In pertinent part, the letter’s author wrote that the records which the Veteran requested have been destroyed. While these records were destroyed, the author wrote that he was able to confirm the dates of the Veteran’s stay at T. State Hospital and diagnoses. (Presumably the 29-day hospitalization and diagnoses of drug dependence/other psycho-stimulants, and antisocial personality [disorder], as noted above). In November 2019, the Veteran was afforded a VA PTSD evaluation. A psychologist reviewed the Veteran’s claims file; considered the Veteran’s subjective accounts of his psychological and medical history; and conducted an evaluation. In a diagnostic summary, this psychologist noted that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5. However, the psychologist provided current diagnoses of unspecified depressive disorder and inhalant use disorder in remission (due to controlled environment). The psychologist noted here that the Veteran has a lifelong history of inhalant use; he is currently in remission due to his being housed in a prison. The psychologist opined that the Veteran’s claimed psychiatric disorder (to include PTSD, and unspecified depressive disorder) was less likely than not incurred in or caused by the Veteran’s claimed in-service injury, event, or illness. The psychologist provided a rationale to support her negative nexus opinion. Notably, the Veteran was admitted for drug and inhalant use prior to his active duty service. The evidence shows that the Veteran began using inhalants at the age of 14. The Veteran was only credited with service of 4 months and 28 days with the remaining time as absent without leave. The psychologist found no indication that the Veteran’s military career caused his present depressive symptoms. The Veteran was hospitalized for drug dependence and antisocial personality disorder at the age of 17, after his separation from active duty service. Moreover, a review of the evidence discloses that the Veteran began treatment for depression in 2006, after being arrested on an aggravated sexual assault conviction and rendering of a 20-year sentence. And, during the evaluation, the Veteran stated that he did not think that the military caused his depressive symptoms. Although, according to the psychologist, there were complaints of depression beginning in 2006, there is no evidence of mental health treatment during active duty service or any continuity of care for mental health treatment from the time of the Veteran’s separation from service until the present day that would suggest a nexus between the Veteran’s current mental health complaints/treatment and his active duty military service. In December 2019, VA received additional mental health treatment records from Correctional M.C. Scrutiny of these records reflect that the Veteran was afforded mental health status and case management services. Correctional facility clinicians took note of the Veteran’s on-going depressive symptoms. Moreover, these records contain observations as to the Veteran’s appearance; sensorium; and affect and mood. These clinicians did not provide guidance as to the Veteran’s mental health dysfunction as having an etiological relationship to the Veteran’s active duty military service. As to military service itself, the Veteran reported to correctional facility clinicians that he had active duty service from 1973 to 1975. The Board has considered the Veteran’s lay assertions; however, an etiological opinion as to the present diagnosis of an acquired psychiatric disorder requires highly specialized psychological knowledge, of which a lay person, such as the Veteran, is generally neither competent nor capable of providing. See Jandreau, supra. The Board assigns considerable weight to the service personnel documents that report only military performance shortcomings but with no suggestion that his behavior was a manifestation of a mental health disorder or a reaction to his apprehension for service in Vietnam. The Board assigns considerable probative weight to the November 2019 VA psychologist’s opinion. This competent psychological clinician reviewed the entirety of the claims file; considered the Veteran’s lay accounts; and conducted an evaluation. This clinician found current diagnoses of unspecified depressive disorder and inhalant use disorder in remission (due to controlled environment). Further, this psychologist indicated that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5. Only upon contemplation of the totality of evidence (including findings from the psychometric evaluation), did this expert render a negative nexus opinion. Moreover, this negative nexus opinion included an evidence-based (or lack thereof) rationale. The competent evidence of record discloses a present acquired psychiatric disorder (“unspecified depressive disorder and inhalant use disorder in remission (due to controlled environment)”); however, the competent evidence of record fails to disclose an in-service incurrence or predicate. The Veteran’s STRs include no mention of in-service psychological complaints, treatment, or diagnosis. The preponderance of the evidence is against the acquired psychiatric disorder service connection claim. As such, there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.