Citation Nr: 21005567 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 04-40 356 DATE: February 2, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran’s psychiatric diagnoses during the appellate period, to include PTSD, anxiety and depression, were incurred in service or are secondary to his service-connected disabilities. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 4.125 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1967 to June 1970. The record reflects that the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request for this claim. The Veteran has provided testimony in a hearing with a Veterans Law Judge on January 2008 and September 2015, and the undersigned has considered the transcript of those hearings as evidence in this review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Direct service connection can be granted only when a disability was incurred or aggravated in the line of duty not as a result of the Veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § § 3.301 (c) (2). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § § 3.1 (n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. at (1). In addition, VA regulations specifically note that disabilities that were incurred or aggravated as the result of a veteran’s willful misconduct will not be service-connected. See 38 C.F.R. § § 3.301 (c) (2). Alcoholism or alcohol abuse is not a disability for the purposes of VA compensation. VA law and regulations preclude compensation for primary substance abuse disabilities and secondary disabilities that result from primary substance abuse as this is deemed to constitute willful misconduct on the part of the claimant. See 38 U.S.C. § 105 (a) (West 2014); 38 C.F.R. §§ 3.1 (m), 3.301(d) (2019); see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (“the legislative history is quite clear that Congress intended to... preclude recovery for a primary alcohol abuse disability...”). Therefore, service connection for an alcohol abuse disability as a primary disability related to active duty service must be denied as a matter of law as service connection is not permissible for that type of disability. However, the United States Court of Appeals for the Federal Circuit has held that service connection is warranted for an alcohol abuse disability acquired as secondary to, or as a symptom of, a veteran’s service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection for PTSD requires (1) a PTSD diagnosis conforming to the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5); 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. § 4.125. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety The November 1966 pre-induction report of medical history indicates the Veteran denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. The November 1966 pre-induction report of medical examination indicates a clinically normal psychiatric evaluation. Service treatment records (STRs) indicate the Veteran was hospitalized in September 1969 for delirium tremens while stationed in Taipei, China. The examiner opined the Veteran’s hospitalization was prompted by alcohol withdrawal symptoms. The June 1970 separation report of medical examination indicates the Veteran’s psychiatric evaluation included a diagnosis of alcoholism. The Veteran alleges his current psychiatric diagnoses, to include PTSD, stem from the in-service stressor of hearing wounded service members moaning and crying while hospitalized in Vietnam. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, if the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d). The Veteran’s personnel records do not indicate the Veteran engaged in combat. Service personnel records indicate the Veteran’s military occupational specialty (MOS) was as a clerk-typist, that he did not receive combat-related awards or decorations, and that he was not hospitalized in Vietnam. Records indicate he had duties consistent as a “general clerk” and “clerk-typist” in Taiwan, and also served as a clerk typist in Vietnam with a signal (i.e., electronic communications) unit in Vietnam. The only time the Veteran appears to have served as a truck driver was when posted to Fort Bliss, Texas – prior to his transfer to Taiwan or Vietnam. The record indicates that he was hospitalized twice while stationed in Taipei, China, for intoxication or alcoholic withdrawal symptoms. Thus, the Veteran’s claimed in-service stressor is not substantiated. Post-service treatment records indicate the Veteran was hospitalized for alcoholic withdrawal symptoms, alcoholism treatment, and driving while intoxicated. The April 2002 Vet Center intake form indicates the Veteran reported completion of an alcoholic rehabilitation program and that he had not had a drink since 1985. The Veteran reported witnessing destruction, and the killing and wounding of American and enemy soldiers and civilians. He endorsed nightmares, intrusive thoughts, flashbacks, depression, isolation, and that he abused alcohol to try to forget his past. The Vet Center examiner diagnosed the Veteran with PTSD. At the March 2003 VA examination for PTSD, the examiner noted the Veteran’s stressor statement that his in-service trauma was being hospitalized and hearing wounded soldiers cry. The examiner also noted that the Veteran’s service records show he was not hospitalized during his tour in Vietnam but rather prior to his Vietnam service in Taipei, China. The Veteran also endorsed sleep impairment, loss of appetite, loss of interest in sexual activity and low energy levels. The examiner diagnosed the Veteran with depressive disorder not otherwise specified (NOS) and alcohol dependence in remission for 18 years, and opined the Veteran’s records did not support a diagnosis of PTSD related to Vietnam combat. He further explained that the Veteran’s depression was more likely due to recent events and related to immediate life-issues such as untreated health issues and aging rather than his military experiences. In a January 2004 letter, the Veteran’s non-VA treating social worker reported that the Veteran’s current depression was caused by war-related traumas with mental dreams and flashbacks; past alcoholic traumas with bodily injuries; his aging process with his loss of partial hearing; working at a job which compelled him to drive long distances; emotional stigma caused by fellow employees who “look[ed] down on him;” and pain in his back and legs. In another January 2004 letter, a VA psychologist diagnosed the Veteran with major depressive disorder NOS after 2 counseling sessions. The examiner noted the Veteran had sleeping problems for the past two years, to include nightmares about his childhood accident. There was no mention of service-related trauma. In March 2004, the same VA psychologist diagnosed the Veteran with moderate PTSD, chronic, after the Veteran reported feelings of guilt regarding his experiences in Vietnam. The examiner based his opinion on the Veteran’s reported exposure to combat trauma and that the Veteran reported his symptoms as related to those combat experiences. However, the examiner did not further elaborate on the differences in conclusions as to his initial January 2004 examination report and this addendum opinion two months later. September 2005 VA treatment records indicate the Veteran was taking Paxil for his PTSD symptoms. A December 2005 letter indicates the Veteran had a current diagnosis of PTSD and that he reported suicidal ideation and blackouts. At a January 2006 psychiatric examination at the Tuba City, Arizona, VA mental health clinic, the Veteran reported military service as a truck driver, that driving the truck was dangerous and that he abused drugs and alcohol to find his courage, that he was “always facing death” when he drove the truck to the perimeter, that he was hospitalized twice during service, and that during his hospitalization he spent time with soldiers who had lost limbs and were screaming out in pain. The examiner diagnosed the Veteran with PTSD. In a December 2006 statement, the Veteran’s treating social worker indicated the Veteran had chronic PTSD, that he dealt with his PTSD by avoidance due to his Navajo upbringing of remaining silent about war experiences, and that the Veteran numbed his pain with excessive use of alcohol. This opinion is not probative because VA provisions require that an examiner forming a nexus between a stressor claimed by the Veteran and a fear of hostile military or terrorist activity must be a VA psychiatrist or psychologist. See 38 C.F.R. § 3.304 (f). At the January 2008 Board hearing, the Veteran described his driving duties of picking up and dropping off local civilians who worked at the base, that he feared for his life when he made these drives, and that he would often drink alcohol prior to driving. He then reported experiencing detoxification symptoms that resulted in him being hospitalized with other soldiers who cried and screamed due to injuries. He also endorsed nightmares of their faces and screams, and that he slept in a separate room for his spouse because of these nightmares. The Veteran’s spouse also testified to the cultural traditions of the Navajo nation, of which the Veteran is a member, and how cultural differences surrounding how to relate to people who are dying or how to refer to people who had recently died made it difficult for the Veteran to be hospitalized in the same area with men that were dying from their injuries. He also testified that driving long distances on unpaved roads and living near the airport remind him of his driving duties in Vietnam. March 2008 social security administration (SSA) records indicate the Veteran was taking medication for depression. An April 2008 letter from the Veteran’s social worker indicated that he continued to demonstrate symptoms of PTSD and addiction. In a July 2008 statement, the Veteran’s spouse indicated the Veteran had nightmares of his service in Vietnam, and that he also demonstrated nervousness, fear, and startled responses. These lay statements are competent regarding their observations of the Veteran’s reports of the content of his nightmares, and of his behavior, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to diagnosis the Veteran with an acquired psychiatric disorder or to link the Veteran’s symptoms to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In a September 2009 statement, fellow service member J.W. reported that he also drove a truck with the Veteran, that he also experienced sleepless nights due to nighttime mortar attacks, and these instances caused him and others to be shell-shocked. These lay statements are competent regarding their description of service in Vietnam, but are not competent to diagnose the Veteran with PTSD nor provide a nexus opinion to service. At the March 2010 VA examination for PTSD, The Veteran reported starting to drink alcohol around the age of 10 to numb the pain of a childhood injury that required a lengthy hospitalization away from his family. He reported he continued to drink heaving throughout high school. He also reported a 2-week hospitalization in Vietnam for alcohol-related problems, during which he heard wounded soldiers screaming and crying, and that he retired from his maintenance job in 2007 due to back problems. The examiner diagnosed the Veteran with anxiety disorder NOS and noted the Veteran’s symptoms did not warrant a PTSD diagnosis. The examiner opined the Veteran’s early childhood history of functional impairments including alcohol abuse, illegal behavior, and poor interpersonal relationships was more likely than not the Veteran’s primary stressor for his psychiatric symptomatology, and that the Veteran may have hallucinated his report of hearing soldiers screaming and crying during his hospitalization due to severe alcohol withdrawal symptoms. The examiner also noted that since the Veteran’s behavior after his in-service hospitalizations were similar to his behavior prior to his military service it was less likely than not that there was sufficient support for a PTSD diagnosis related to military trauma. At the September 2016 VA examination for mental disorders, the Veteran reported experiencing traumatic events during service such as witnessing severely injured soldiers and fearing for his life when serving as a truck driver for civilian workers in Vietnam. The Veteran also reported that he used to have nightmares of his childhood injury, his military service, and his alcoholism, but that he no longer endorsed nightmares or distressing dreams currently. However, the examiner noted the Veteran did not endorse clinically significant PTSD symptomatology. For example, the examiner noted that the Veteran’s sleep impairment was being treated as sleep apnea and with medication, that the Veteran reported 7 to 8 hours of sleep, and that he generally felt energized throughout the day. The examiner diagnosed the Veteran with unspecified depressive disorder and opined the Veteran did not meet the criteria for PTSD. The examiner noted there was “no evidence” to suggest that the Veteran’s depressive disorder started prior to 2003, 33 years after discharge. In addition, he opined the Veteran’s depressive disorder was not related to his other service-connected disabilities, because the Veteran’s back disability originated in childhood, and was made worse by service, and the Veteran’s hearing disabilities had their onset in service. The examiner did not provide a rationale for the opinion that the Veteran’s depressive disorder was not related to his service. In an October 2019 addendum, the September 2016 VA examiner reviewed the claims file and responded to additional inquiries. First, he opined the Veteran did not have a psychiatric condition prior to entering service because the Veteran’s pre-induction examination did not indicate the Veteran demonstrated psychiatric symptoms nor a current diagnosis. Second, the examiner opined the Veteran’s depressive disorder was less likely than not related to military service because there was no evidence of complaints, diagnoses, or treatments for depressive symptoms during service, his separation examination did not indicate a clinical depressive disorder, and his post-service treatment records indicate treatment for alcoholism but not depression. The examiner noted for example a 1973 medical examination that did not indicate any psychiatric issues. The examiner again focused on the fact that the Veteran was first diagnosed with depression 33 years after service and that therefore there was “no nexus” between the Veteran’s depression and his military service. Finally, the examiner reiterated that the Veteran’s current depression was not secondary to his service-connected back or bilateral hearing disabilities because these disabilities were incurred in service and the Veteran did not seek treatment for depression until 33 years after discharge, and furthermore that records indicate the Veteran’s depression was related to complex psychosocial factors. In an October 2020 addendum opinion by a different VA clinical psychologist, the VA examiner reviewed the Veteran’s claims file, to include all prior VA examination reports and opinions. The examiner explained that the significance of the 33-year gap between the Veteran’s military service and his initial diagnosis of depression indicated that there could not be a link between the Veteran’s military service and his depression. Furthermore, the examiner noted that the Veteran’s PTSD symptoms did not surface until many years after discharge and that his symptoms may also have been related to his childhood experiences of neglect and abuse, and from his childhood accident and disability from which he apparently recovered well enough to enter service. Of note as it bears on the totality of the record, the examiner also noted that the initial intake of the Veteran’s symptoms did not indicate PTSD but rather depression and anxiety, noting that the Veteran reported his nightmares were related to his childhood accident. The examiner then opined that after reviewing the Veteran’s claims file, it was more likely than not that the Veterans’ depression was not related to his military service but rather to problems that the Veteran had developed as he aged, to include health issues stemming from a long history of alcohol abuse. The examiner reaffirmed the opinions of prior VA examiners that the Veteran’s depression and other mental health symptoms were less likely than not caused by or aggravated by the Veteran’s military service but were more likely related to current problems the Veteran was experiencing. The preponderance of the factually informed, competent and responsive evidence is against finding service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression both on direct and secondary bases. The Veteran has continuously asserted throughout the appeal that his current psychiatric symptomatology is a result of his service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of his current psychiatric disorder. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). PTSD, anxiety and depression require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service. (Continued on next page) Since the Veteran’s current depressive disorder was not incurred in service nor is secondary to his service-connected disabilities, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.