Citation Nr: 21005547 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-01 387 DATE: February 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s acquired psychiatric disorder, to include PTSD and depression, had an onset in service or is otherwise related to his military service. 2. Substance abuse is not a disability for which primary service connection may be granted. The Veteran's diagnosed substance abuse disorder(s) is/are not shown to be due to, or etiologically related to, any event, disease, or injury incurred in-service, or caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1976 to April 1978. The Board of Veterans’ Appeals (Board) remanded this matter in June 2019 for further evidentiary development. The case has returned to the Board for appellate review. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression Service connection may be granted for a 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 granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board remanded the Veteran’s claim in June 2019, in part, to afford him a new VA examination. The Veteran was scheduled for VA examinations in December 2019 and October 2020, he did not report to either. In a November 2020 report of information, the Agency of Original Jurisdiction (AOJ) indicated the Veteran was called via phone to inquire regarding his absence at the scheduled VA examinations, but he did not answer the phone or return the call. The Veteran has been unreachable on multiple occasions over the preceding years, as reflected in contact attempts from the AOJ, the Veteran’s VA treatment records, and the Veteran’s former representative who withdrew his representation on three separate occasions. The representative withdrew representation from March 2016 to September 2016, from November 2017 to March 2018, and again from March 2019 to present, each time citing the inability to find the Veteran. The provisions of 38 C.F.R. § 3.655 address the disposition of claims where claimants for VA benefits fail to report for scheduled examinations without good cause. Under subsection (a), examples of "good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc." Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one- way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). While the record does not contain a copy of the notice letter VA sent to the Veteran informing him of the date and time of the scheduled examination, the Court has held that there is no requirement that this document be contained in the record for the presumption of regularity to apply. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010). There is a presumption of regularity under which it is assumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994). Moreover, he was told of the missed exam in his supplemental statement of the case and has not indicated a willingness to report for an examination. There is no reason to believe the VA does not have the correct contact information for the Veteran. No mail has been returned as undeliverable at the address on file, which has been used since 2019 and there has been no indication that the Veteran’s telephone number changed. Based on the foregoing, the Board will decide the case analyzing the existing evidence in the record. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. The Veteran contends that his current psychiatric disorders are related to his military service. Specifically, the Veteran contends that he had a live grenade thrown into his bunker by mistake while in training at Fort Benning, it was tossed out before exploding. See April 2012 Veteran’s statement in support of claim. The Veteran has further asserted that in September 1977, being on patrol near the North Korea lines caused him panic and fear and in September 1977 there was a helicopter incident, but it is unclear the Veteran’s involvement in this incident. See February 2013 Veteran’s statement in support of claim. Regarding an in-service incurrence, the Veteran’s DD 214 reflects that he was in Korea from April 1977 to April 1978 and his military occupational specialty (MOS) was an Indirect Fire Infantryman and he received Marksman (rifle) and expert (hand grenade) badges. Additionally, the Veteran’s service treatment records (STRs) are silent as to complaints of or treatment for a psychiatric disorder. Specifically, the August 1976 entrance examination and the April 1978 separation examination indicate the Veteran did not report depression or excessive worry at either exam. On Chapter 5 examination at separation the Veteran reported he was in good health, and again no pertinent findings were made and he was noted to be normal on psychiatric examination. The Board notes that the April 1978 separation examination annotated the purpose of the examination was “Chapter 5”. Army Regulation (AR) 635-200, Active Duty Enlisted Administrative Separations, December 19, 2016, reveals that a Chapter 5 separation is a separation for the convenience of the government. In this particular instance, the discharge examination did not identify any physical or mental abnormalities; however, it should be noted that a Chapter 5 separation can be related to physical or mental conditions that are incompatible with military service, such as a psychiatric disorder. It may also represent a service finding that the individual does not meet standards for retention or otherwise indicated a disinterest in performing his/her duty in service. Further, the Veteran’s military personnel records (MPRs) reveal a reduction in rank from PFC to PV1 in January 1978, during the time the Veteran was in Korea. The Board notes that the VA issued a February 2013 formal finding on a lack of information required for verification of stressors in connection with a claim for service connection for PTSD after being unable to make contact with the Veteran. Given the above, the Board finds there is at least an argument for an in-service occurrence. Thus, the matter before the Board is whether the Veteran has a current psychiatric disorder and whether it is related to his military service. There are particular requirements for establishing 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). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304. For PTSD, the dispositive matter is whether the Veteran has a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied if the disability existed at the time a claim of filing of VA disability compensation or during the pendency of that claim, even if the disability resolved prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of a diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. The record contains conflicting medical evidence regarding the Veteran’s diagnoses. The April 2013 VA examiner reviewed the Veteran’s claims file and noted that the Veteran did not have a PTSD diagnosis, and confirmed diagnoses of substance-induced mood disorder, alcohol dependence, and cocaine dependence. Depression was listed as a symptom of these disorders. The examiner provided that the substance-induced mood disorder is likely to be associated with social and family problems rather than with military service issues. At a January 2016 VA treatment visit, the Veteran reported he felt that his depression had improved significantly since abstaining from substances. A May 2016 VA treatment note contains a diagnosis of cocaine and alcohol use in partial remission, nicotine use disorder, unspecified depressive disorder and a history of PTSD. The assessment notes that the Veteran does not present with a full clinical picture consistent with the diagnosis of PTSD as he is claiming to have. As previously mentioned, the Board remanded this matter in June 2019 to obtain Social Security Administration (SSA) records and for additional examination. Pursuant to the Board remand, the AOJ obtained SSA records. The SSA records include a December 2012 SSA decision denying benefits because they were unsuccessful in obtaining enough information from the Veteran to make a decision on his claim at that time. The diagnoses are listed as (drug) substance addiction disorder as the primary diagnosis and anxiety related disorders as the secondary diagnosis. An August 2013 SSA decision granted SSA benefits. The severe impairments were listed as disorders of the back with a note that polysubstance abuse was not a severe impairment within the meaning of the SSA. An August 2019 SSA decision continued the August 2013 disability determination. The primary diagnosis is listed as disorders of the back, the secondary diagnosis as depression, bipolar, and related disorders. SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence. Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an Veteran TDIU). Based on the above, the Board finds that the claim for service connection for PTSD fails. Here, the Veteran has not been found to meet the DSM criteria for a PTSD diagnosis. See 38 C.F.R. § 3.304 (f). As for the Veteran's contentions that he has a current diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify." Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159 (a) (2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (discussing that a veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a veteran to report psychiatric symptoms). The Board finds the Veteran's lay statements less probative or persuasive than post-service medical evidence finding that the Veteran does not meet the DSM-IV or DSM-5 criteria for PTSD. Moreover, although the Veteran is competent to describe his psychiatric symptoms, by regulation, PTSD is a condition that can only be diagnosed by a medical professional, according to 38 C.F.R. § 3.304 (f). As for the Veteran’s claim for depression, there is a clinical diagnosis of unspecified depressive disorder; but depression has also been described as a symptom his substance abuse disorder(s). As noted above, in order to assist in developing the claims and pursuant to the June 2019 Board remand, examinations were scheduled for December 2019. The Veteran did not report to the exam, so it was rescheduled for October 2020, and he did not report to this exam either. The Veteran was called in November 2020 to reschedule and he did not answer. No additional response was received, no additional action was taken, and an October 2020 supplemental statement of the case (SSOC) continued the denial of his claim, stating that the Veteran failed to report for his examinations. While it is unclear specifically which psychiatric disorders may be clinically diagnosed, there is an indication of a current psychiatric disorder, specifically a substance abuse disorder with symptoms of depression. The evidence indicates that the Veteran does not have PTSD, but that his claimed psychiatric symptoms are related to substance abuse disorder. The Veteran’s VA treatment records indicate PTSD as he reported PTSD to his physicians but there is no clinical diagnosis on record. There is no clinical evidence that any depression identified is in any way related to service. Regarding the Veteran’s diagnosed substance abuse disorder(s), service connection is not available for a disability that is the result of a veteran's willful misconduct or the result of his abuse of alcohol or drugs. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. However, service connection may be granted for substance abuse that is a secondary to or is caused by a primary service-connected disorder. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. As such, service connection for substance abuse can only be awarded on a secondary basis. Pursuant to this decision, the Veteran has not been granted service connection for any disability. As such, service connection cannot be granted secondary to a nonservice-connected disability.   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Thus, based on the regulation above, and the evidence of record the Board must deny the appeal as it now stands. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.