Citation Nr: 21005543 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-31 343 DATE: February 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT An acquired psychiatric disability was not present during the Veteran’s active service, a psychosis was not manifest to a compensable degree within the first post-service year, and the most probative evidence indicates that the Veteran’s current acquired psychiatric disability is not causally related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1968 to July 1970, including in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2013 rating decision, the RO, in pertinent part, denied service connection for any acquired psychiatric condition to include PTSD and anger problems (claimed as mental health). Following the receipt of additional evidence, a May 2014 rating decision reconsidered the decision and confirmed and continued the denial. In October 2014, VA received the Veteran’s Notice of Disagreement. Following the issuance of a Statement of the Case (SOC) in August 2015, the Veteran perfected a timely appeal via his submission of a VA Form 9 later that month. In December 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is a part of the record. In July 2019, the Board remanded the matter for further evidentiary development. In September 2020, the RO issued a Supplement Statement of the Case (SSOC) addressing entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran’s appeal is now returned to the Board for further appellate proceedings. 1. Entitlement to an acquired psychiatric disability, to include PTSD The Veteran contends that his current acquired psychiatric disability is a result of his experiences in Vietnam. See e.g. December 2018 Transcript of Hearing pages 2-4 and Veteran’s December 2018 lay statement. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. In general, to establish a right to compensation for a present disability, a veteran must show: (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, the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, including psychoses, may also be established on a presumptive basis by showing that such a 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. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 the his fear of hostile military or terrorist activity and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service. 38 C.F.R. § 3.304(f)(3). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In pertinent part, the Veteran’s service treatment records show that in July 1970, he underwent psychiatric evaluation in connection with a period of incarceration. It was noted that he had had two periods of being absent without leave (AWOL) “with four months of bad time.” It was also noted that he had cut himself while incarcerated at the Philadelphia Naval Stockade, although he denied that it was suicidal. The Veteran reported experimenting with most drugs including LSD, but denied heroin use. He indicated that he felt that he could no longer tolerate being in the Army because “I like to be free.” On examination, his affect was appropriate, although he displayed much anger, hostility and defiance towards the Army in general and the examiner at times. The examiner found no evidence of a thought disorder. The Veteran denied any visual or auditory hallucinatory experiences. The examiner indicated that there was no paranoid delusional system present and the Veteran’s judgment and insight appeared to be intact. The examiner diagnosed the Veteran as having an inadequate personality with history of drug abuse. He concluded that the Veteran had a chronic character and behavior disorder, displayed no interest in stopping his drug experimentation, nor was he motivated for mental health therapy. The examiner indicated that the Veteran’s chances for rehabilitation were quite low and, due to his lack of motivation, psychiatric treatment would be of little use to him. At the Veteran’s July 1970 separation examination, he completed a report of medical history on which he described his health as “good.” He specifically denied having or ever having had frequent trouble sleeping, frequent or terrifying nightmares, and depression or excessive worry. On clinical evaluation, psychiatric examination was normal. The Veteran’s personnel records show that he served as a radar operator in the Republic of Vietnam from February 1969 to February 1970. In April 1970, he was charged with desertion. In July 1970, he was discharged under conditions other than honorable. In October 1974, however, the Army Discharge Review Board upgraded his discharge to a general discharge. In pertinent part, the post-service record on appeal shows that in September 2009, the Veteran was admitted to a private facility with complaints of severe depression and suicidal ideation. The Veteran indicated he had had a past suicide attempt in February 2008. The Veteran reported that he had been feeling severely depressed for the past couple of years due to a conflict with his wife’s friend. He reported not sleeping, and getting angry and agitated easily. The Veteran reported that he had been taking Paxil for the past two years, but felt it had been ineffective. The Veteran denied psychotic symptoms and made no reference to military service, Vietnam, or psychiatric symptoms prior to 2008. He was oriented to time, place, and person. During the hospitalization the Veteran was mostly cooperative and attended individual and group therapy. Upon discharge the Veteran was diagnosed with major depression, moderate. On December 8, 2009 the Veteran returned to the private facility after he attempted to overdose. The Veteran admitted to having a longstanding history of depression. The Veteran reported not wanting to live any longer and was unhappy in his marriage. The Veteran denied psychotic symptoms and was cognitively orientated to time, place, and person. During the hospitalization, the Veteran was mostly cooperative and attended individual and group therapy. During the therapy sessions the Veteran discussed his marriage issues and boredom. These records are negative for reports related to service, including Vietnam. Upon discharge the Veteran was diagnosed with major depression, severe recurrent. On December 21, 2009 the Veteran was again admitted with complaints of being unable to sleep, having vivid nightmares, and recurrent auditory and visual hallucinations. The Veteran reported being afraid to sleep because of vivid nightmares and whenever he does sleep he wakes up screaming and has severe anxiety with racing thoughts. The content of the nightmares was not noted. During the hospitalization the Veteran was mostly cooperative and attended individual and group therapy. During those therapy sessions, the Veteran was counseled about his relationship with his wife. Upon discharge the Veteran was diagnosed with major depression, recurrent, parasomnia, and anxiety disorder. The record on appeal contains VA clinical records dated from September 2011. In pertinent part, these records show that a PTSD screen in September 2011 was negative. In June 2012, the Veteran reported vivid dreams, generally not unpleasant, often involving his family and life situation. In July 2012, he reported hallucination issues but attributed it to being on a lot of medications. During a June 2012 VA behavioral health visit, the Veteran reported recent crying spells at the drop of a dime, and these spells have been going on for several months along with anxiety. The Veteran also reported that his bad dreams had been around for years but recently they had become more frequent and bothersome. The Veteran provided an example from the previous night where he dreamt he was in a mental institution and his family was trying to get him out but they all ended up dying by the end of the dream. Upon awaking the Veteran called his wife to ensure he was in fact awake and requested that she drive him to the doctor’s. At an August 2012 intake evaluation, the Veteran reported that approximately three months prior, he had stopped taking his medication because he was feeling good; however, this resulted in “meltdown” with him starting to feel more depressed and suicidal. On examination, the Veteran dated the onset of his feelings of depression to 8 years prior. At that time, he had a suicide attempt and was hospitalized. He also acknowledged an earlier history of cocaine and heroin abuse 30 years prior. He indicated that he last used marijuana one year prior. The Veteran was diagnosed as having depression, not otherwise specified; rule out depression secondary to general medical condition; rule out major depressive disorder; and adjustment disorder with anxious mood. In December 2012, the Veteran received emergency treatment secondary to suicidal ideations and an attempt/ingestion. The diagnostic impression was major depression recurrent. During this hospitalization, the Veteran reported that he had been feeling depressed over the past 2-3 years but felt unable to identify any events that may have led to this beyond a dissatisfying relationship with his wife, his car breaking down, and being unable to get out of the house as much as he would like. The Veteran’s wife reported that the Veteran reliably becomes depressed in December around the anniversary of his mother’s death six years prior. The Veteran’s wife also identified that lack of transportation and activities are his primary stressors. In January 2013, the Veteran submitted an original application for VA compensation benefits, seeking service connection for mental health and anger problems which he claimed had begun in 1970 after Vietnam. The Veteran was afforded a VA medical examination in April 2013. After examining the Veteran and reviewing the record, the examiner concluded that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD under DSM-IV. Rather, the examiner diagnosed recurrent major depressive disorder and anxiety disorder, not otherwise specified with features of PTSD and panic disorder. The examiner observed that the Veteran was somewhat vague during the interview and that the Veteran was “somewhat vague and difficult to follow in his timeline.” The examiner described the Veteran as a poor historian. By way of history, the Veteran denied mental health issues growing up and prior to the military. He indicated that the first time he saw a psychiatrist was after he was imprisoned in the military for going AWOL and drug use. The examiner noted, however, that the Veteran had reported in clinical settings that he had had temper tantrums as a kid and saw a psychiatrist at age 16 because he was having difficulty with the law. When the Veteran was asked about his stressors, the examiner noted that the Veteran was vague and stated “there is no one specific incident.” He stated that just being a 19-year-old and going to Vietnam was difficult. He also identified that Vietnam was both exciting and scary at the same time. Despite the reported Vietnam experiences, the examiner explained that the Veteran did not meet the remaining necessary criteria to support a diagnosis of PTSD. With respect to the Veteran’s diagnosed psychiatric disabilities, the VA examiner indicated that the onset of the Veteran’s disability was unclear because the Veteran had difficulty giving an accurate timeline and made conflicting reports throughout the examination about when his symptoms began. For example during the beginning of the examination the Veteran claimed he had always been depressed, then he went on to state his symptoms generally started around early 1990 to 1991, including his anger, irritability and anxiety. The examiner concluded that given these inconsistencies, it was difficult to ascertain a cohesive timeline of the Veteran’s symptoms.. In a July 2015 opinion, the VA clinical psychologist who conducted the April 2013 VA examination indicated that she had reviewed the record for the purpose of providing an opinion as to whether the Veteran’s diagnosed depression and anxiety are at least as likely as not due to military service. The examiner noted that the in-service psychiatric evaluation revealed that the Veteran’s symptoms were consistent with a personality disorder and substance use, and no other mental health diagnoses were established. In addition, the examiner noted that the post-service clinical evidence, including the 2009 hospitalization records, indicated a clear history of psychiatric symptoms beginning many years after service. Based on her prior examination of the Veteran and a review of the record, the examiner opined there was insufficient evidence to support a conclusion that the Veteran’s depressive symptoms began in service or that his current psychiatric symptoms were related to his active service, including the symptoms noted in the 1970 examination report. The examiner concluded the weight of the evidence indicated that it was less likely than not that the current diagnosis of major depressive disorder recurrent and anxiety disorder not otherwise specified with features of PTSD and panic disorder, under the DSM-IV, are related to military service. In December 2018 the Veteran submitted a letter from his current VA physician who indicated that the Veteran had “chronic mood related problems that might be related to his history of being in the military.” The physician indicated that she did not have access to any medical records from the Veteran’s military service, however, and therefore could not provide any details to support or refute whether the Veteran’s condition is related to his service in the military. In November 2019 the Veteran was afforded another VA examination. After examining the Veteran and reviewing the record, the examiner concluded that Veteran currently had unspecified anxiety disorder per the DSM-5 criteria. The examiner opined that the Veteran does not meet criteria for PTSD. The examiner concluded that it was less likely than not that the Veteran’s current unspecified anxiety disorder was incurred in or otherwise causally related to service. The examiner noted the Veteran’s reports of significant substance use problems prior to service, around age 16/17 years, during service, and for about 1-2 years after service. The Veteran reported using cocaine, other stimulants, heroin, uppers and downers, etc. The examiner also noted that the Veteran reported that he currently smokes medical marijuana to help with his anxiety. The examiner went on to explain: Substance use/intoxication/withdrawal can cause disturbances in mood, sleep, energy, anxiety, concentration, memory, psychotic symptoms, etc. The in-service psychiatric evaluation reports difficulty with authority figures and getting along with peer group and that he saw a psychiatrist as a 16-year-old. These could all be consistent with substance use behaviors from use prior, during and for reportedly 1-2 years after service. STR evaluation also reported he has no interest in stopping his drug experimentation. It is more likely than not that his behavioral issues prior to service, during and shortly after were secondary to the effects of substance use given his history. This examiner who performed the psychiatric exam in service did not diagnosis a primary psychiatric condition but instead reported personality issues and drug abuse. Additionally, the examiner noted the Veteran reported prior to service he used methamphetamine, cocaine, Quaaludes, marijuana, hash, and LSD. The Veteran reported while in service he used heroin and marijuana. The examiner opined all these significant substances can have significant psychiatric/behavioral affects. In reviewing the Veteran’s past hospitalizations, the examiner noted the records showed psychosocial stressors were contributing to his depression. The VA records show a negative PTSD screen in 2011 and a history of depression secondary to psychosocial stressors (unemployed, no car, stuck in home when wife is at work because of no second car, and felt lonely.) All of above records were considered in the examiner’s opinion that the Veteran’s current unspecified anxiety is not related to service. After applying the facts in this case to the applicable legal criteria, the Board concludes that the preponderance of the evidence is against the claim of service connection for acquired psychiatric disability, to include PTSD. As set forth above, the service treatment records reflect that an acquired psychiatric disability was not identified during active duty. The Veteran underwent a psychiatric evaluation in July 1970 and the examiner found no evidence of an acquired psychiatric disability. Rather, he was diagnosed as having an inadequate personality with history of drug abuse. Although the appellant was diagnosed with personality disorder, such is not a disease or injury for VA compensation purposes, as it is well-established that personality disorders are not diseases or injuries within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c), 4.9; see also Morris v. Shinseki, 676 F.3d 1346, 1354-56 (Fed. Cir. 2012) (noting that according to the express language of 38 C.F.R. § 3.303 (c), personality disorders are not diseases or injuries within the meaning of § 1110 and thus are not compensable ); Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008) (personality disorders are considered congenital or developmental defects for which service connection cannot be granted because they are not diseases or injuries within the meaning of applicable legislation). Similarly, to the extent a drug abuse disability was identified, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits payment of compensation for a disability that is a result of a veteran’s own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C. § 105(a) and mandated that for claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs. Conner After considering the record, the Board finds that the most probative evidence establishes that an acquired psychiatric disability was not present in service. Moreover, the Board finds that the record contains no indication, nor is it specifically contended, that a psychosis manifest to a compensable degree within one year of separation. Although a psychiatric disability was not present during service or manifest to a compensable degree within one year of separation, service connection may still be granted for a disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the Board finds that the most probative evidence establishes that the Veteran’s current psychiatric disability is not causally related to active service. As set forth above, in November 2019, after examining the Veteran and reviewing the record, a VA examiner concluded that the Veteran’s current psychiatric disability is less likely than not incurred in or otherwise causally related to service. The November 2019 VA examiner had the benefit of review of the entire claims file, to include the service treatment records and the post-service VA and private clinical records. The examiner also had the benefit of examining the Veteran and collecting his reported history. This allowed the examiner to be fully informed of the pertinent facts. The examiner provided a rationale for the conclusion reached which is consistent with the evidence of record. The Board has considered the December 2018 letter from the Veteran’s treating physician but assigns it little probative value. By the clinician’s own report, she did not have the benefit of reviewing the service treatment records. More importantly, the opinion is expressed in speculative terms. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor’s opinion that “it is possible” and “it is within the realm of medical possibility” too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words “could not rule out” was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician’s statement that a service-connected disorder “may or may not” have prevented medical personnel from averting a Veteran’s death was not sufficient). Given the applicable standard of proof, the Board finds the December 2018 VA clinician opinion is insufficient to support an award of service connection and that the November 2019 VA examination outweighs the December 2018 clinician opinion on the question of nexus. The Board has considered the Veteran’s contentions that his current psychiatric disability was incurred in service as the result of his experiences in Vietnam. Although the Veteran is competent to describe his in-service symptoms and experiences, the record does not establish that he is competent, whether by training or experience, to attribute those symptoms to an acquired psychiatric disability or otherwise provide an etiological opinion on the nature and etiology of his current psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran lacks the medical training and expertise to address a complex medical question such as diagnosing a specific psychiatric disability and providing the etiology for any such diagnosed psychiatric disorder. Considering this, the Board affords greater probative weight to the November 2019 VA medical opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In light of the Veteran’s statements and his service in Vietnam, the Board has considered the provisions of 38 C.F.R. § 3.304, but finds that the most probative evidence establishes that he does not have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. As set forth above, repeated examination has shown that the Veteran does not meet the criteria for a diagnosis of PTSD, either under DSM-IV or DSM-V. Rather, the Veteran’s psychiatric symptoms are better explained by other diagnoses. The Board assigns the November 2019 examination report great probative weight. It was given by a clinician with the expertise necessary to opine on the question at issue. Moreover, it was based on both a review of the record and an examination of the Veteran. The examiner provided a detailed rationale for the conclusion. Finally, the Board notes that there is no other clinical evidence of record which shows that the Veteran has a diagnosis of PTSD in accordance with DSM-5. The Board has considered the VA treatment records noting a history of PTSD but none of the clinicians noting those diagnoses provided an explanation or rationale for the diagnosis. The Board has carefully considered this evidence but finds that it does not outweigh the specific, reasoned November 2019 VA medical examination report In summary, the Board finds that the most probative evidence shows that the Veteran does not have PTSD, to include a diagnosis of PTSD under section 4.125(a). In addition, the most probative evidence shows that the Veteran’s current psychiatric disability did not have its inception during active duty and is not otherwise causally related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.