Citation Nr: 21006331 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-28 895A DATE: February 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, is granted. Entitlement to service connection for a psychosis for the purpose of establishing eligibility for Department of Veterans Affairs (VA) treatment is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder, to include depressive disorder and anxiety disorder, is at least as likely as not related to in-service events. 2. The preponderance of the evidence of record is against finding that the Veteran has had any psychosis at any time during or approximate to the pendency of the claim that arose during or is otherwise related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for eligibility for Chapter 17 medical services under 38 U.S.C. § 1702 for psychosis are not met. 38 U.S.C. §§ 1702, 5107; 38 C.F.R. §§ 3.2, 3.384, 17.109. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from January 1986 to July 1996, and the United States Air Force from November 2004 to February 2005 with additional reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In May 2017, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The Board remanded this case to the AOJ for additional development in August 2017, April 2019, and April 2020. The case is now returned for appellate review. The record reflects that the Veteran received a letter dated October 2020 indicating that he had elected an in-person hearing. Upon further review, he did not have a pending hearing request and the hearing letter was clearly sent in error. As noted, he provided testimony in May 2017 before the undersigned. 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety The Veteran contends that he has an acquired psychiatric disability related to his military service. He testified at the Board hearing that his psychiatric disorder was related to several events during his active duty service, including a head injury from a frying pan and the fear of attacks, high blood pressure, anxiety about losing his flight status due to prescribed medications, and testing positive for tuberculosis. See May 2017 Board hearing transcript, pp. 15-16. He noted that he had trouble adjusting to military life while married with small children in April 1986; and attempting to pass a course in the military in April 1986. See January 2011 VA treatment record. The Veteran also testified that during service he was prescribed Darvocet, which had a known side effect of anxiety, and was banned in the United States in November 19, 2010. See May 2017 Board hearing transcript, p. 4. He testified that he also went through Isoniazid therapy (IHN), which had a known side effect of mood changes. Id. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). Active military service includes (1) active duty (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA, but (except for the exceptions listed) only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 C.F.R. § 3.6 (c). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101 (23) (2012); 38 C.F.R. § 3.6 (d). Annual training is an example of active duty for training, while weekend drills are inactive duty training. “Injury” is defined as harm resulting from some type of external trauma. “Disease” is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002. If a claimant establishes qualifying disease or injury during ACDUTRA or INACDUTRA, the claimant must still show the existence of a present disability and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the “positive” evidence in favor of the claim is in relative balance with the weight of the “negative” evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of depression and an anxiety disorder. See, e.g., May 2017 VA psychiatric treatment record. The service treatment records during the Veteran’s two periods of active duty service do not show treatment for a psychiatric disorder. However, several of the incidents the Veteran testified about are corroborated in the treatment records; and the military personnel records also note that the Veteran underwent a drug and alcohol program during active duty service. During the Veteran’s first period of active duty service in the Navy from January 1986 to July 1996, service treatment records show that the Veteran suffered a scalp laceration in August 1991, which he stated was the result of being struck over the head with a frying pan. June 1987 military personnel records reflect that the Veteran completed a 36-hour course through the Navy Alcohol and Drug Safety Action Program. June 1991 military personnel records reflect that the Veteran repeated the course. Service treatment records in November 1990 reflect that the Veteran reacted to PPD. The treatment provider noted that it meant the Veteran had been exposed to the organism that causes tuberculosis (TB). He was instructed to take Isoniazid (INH) daily for a period of six months to prevent the development of active TB. March 1992 service treatment records reflect that the Veteran reported that he took INH for a full six months. Service treatment records in May 1991 and June 1991 reflect that the Veteran was prescribed Seldane. August 1991 service treatment records reflect that the Veteran was prescribed Darvocet. Several months prior to his second period of active duty service in the United States Air Force from November 2004 to February 2005, the Veteran was diagnosed with an adjustment disorder/ mixed disturbance of conduct and emotion in August 2004. It was noted that his mood instability was in reaction to psychosocial stressors which had been resolved. He had been prescribed Wellbutrin, which was later discontinued, as noted on a January 2006 private treatment record. The Veteran has stated that he was in the United States Naval Reserve from August 2001 to November 2003, and in the United States Air Force Reserve from November 2003 to October 2010. During the Veteran’s Reserve service in April 2006, the Veteran was granted a temporary P-3 profile with a diagnosis of adjustment disorder with mixed disturbance of conduct and emotion treated with Wellbutrin (with medication discontinued in January 2006). In March 2007, he was cleared by a mental health provider for worldwide deployment. A September 2010 service treatment record notes that the Veteran had 19 years of military service and had a diagnosis of adjustment disorder with mixed anxious and depressed mood (chronic). It was noted that he had required Wellbutrin to stabilize his mood since May 2008, which was disqualifying. The examining clinician, however, recommended that the Veteran be granted a waiver for continued military service, noting that he was a productive member of the unit and performed specific duties without restriction. As the record shows that the Veteran suffered a head injury consistent with his testimony of being attacked with a frying pan in service, underwent a drug and alcohol program, was treated for TB, was prescribed medication which he claimed caused anxiety and mood changes, and was treated for an adjustment disorder during his Reserves service, the question becomes whether the current disability is related to service. On this question there is evidence in favor of and against the claim. The evidence against the claim includes VA examinations provided in June 2018, November 2019, and April 2020. However, all of the examinations provided are inadequate. The June 2018 VA examination is inadequate because while the examiner stated that he believed the Veteran’s anxiety disorder predated the Veteran’s service, the July 1985 entrance examination did not note a diagnosis of anxiety upon entrance. As a preexisting psychiatric disability was not “noted” at service entrance, clear and unmistakable evidence is required to demonstrate that a psychiatric disorder preexisted service. See 38 U.S.C. § 1111. The examiner stating that he believed the Veteran had a preexisting anxiety disorder based on the Veteran growing up with an alcoholic father without any supporting evidence does not amount to clear and unmistakable evidence or a preexisting psychiatric disorder. The June 2018 opinion also did not provide an adequate rationale as to why the Veteran’s mental health diagnosis and treatment in service is not the same disability as the current generalized anxiety. The examiner noted that the symptoms are not consistent with the Veteran’s current mental health symptom and that there is no evidence that the symptoms were continuous or the same entity since military service. However, the examiner did not provide explanation why the Veteran’s current symptoms are not the same symptoms that occurred in service. The examiner did not address any of the reported incidents of service, including adjusting to military life while married with small children in April 1986; attempting to pass a course in the military in April 1986; being exposed to tuberculosis in November 1990, and being hit on the head with a frying pan in August 1991. After the case was remanded, the Veteran underwent another VA physiatric examination in November 2019. The examiner diagnosed the Veteran with unspecific depressive disorder, which was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is no evidence the Veteran’s depression was linked to or caused by a claimed in-service injury event or illness. The examiner further reasoned that there was no current evidence that the Veteran’s depression met the criteria for impairment, although he did appear to experience symptoms related to depression. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner found that while the Veteran did exhibit signs of situational and social anxiety, the evidence points to said anxiety predating his miliary service. Furthermore, there was no clear evidence that the events that occurred in military exacerbated his anxiety. The examiner stated that he could not determine the baseline level of the depressive disorder severity based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation. The examiner further stated that the current severity of the depressive disorder was not greater than the baseline. The examiner stated that medical evidence is not sufficient to support a determination of the baseline of severity. Furthermore, it was unclear at this point how well the Veteran was functioning before he entered into military service relative to his functioning after his discharge. The examiner stated that while the Veteran did experience anxiety, these symptoms did not necessarily meet the criteria to warrant a diagnosis. The Veteran admitted that his anxiety predated his military service, and there was no evidence that his anxiety was exacerbated as a result of military service. The examiner noted that he was unable to discuss the significance of the Veteran’s claimed events in service related to his acquired psychiatric disorder. The examiner explained that he did not understand what “addressing the significance” meant. The examiner opined that the Veteran’s acquired psychiatric disorder clearly and unmistakably preexisted service. The examiner reasoned that the Veteran stated he was an anxious kid, particularly in regard to his performance on tests and in sports competitions. The examiner found there is no clear evidence that the Veteran’s service clearly and unmistakably aggravated his anxiety and depression. The examiner found that the Veteran’s hypertension did not cause or aggravate his anxiety or depression. The examiner reasoned that there is no clear evidence that the Veteran’s hypertension clearly and unmistakably aggravated his anxiety and depression. The November 2019 VA examiner’s opinions are not adequate for adjudication because the examiner did not provide adequate rationales for his opinion that the Veteran’s acquired psychiatric disorder clearly and unmistakably preexisted service. The examiner reasoned that the Veteran reported that he was anxious during tests and sporting competitions prior to service. The Veteran’s report of being an anxious child in the Board’s view does not represent clear and unmistakable evidence of a diagnosis for an acquired psychiatric disorder. The Board also finds that evidence of becoming anxious before a test or sporting competition does not indicate a formal diagnosis of an acquired psychiatric disability. Finally, the Board finds that the examiner failed to address the Veteran’s stated in-service events that were related to his claimed acquired psychiatric disorder. Although the examiner explained that he did not understand the meaning behind the question to explain the significance of these events, the Board finds such an explanation wholly inadequate. After the case was remanded for a third time with a request that a different examiner provide the opinion, an April 2020 VA examination report was provided by another psychologist. The examiner noted that the incidents reported in service did not result in an acquired psychiatric disorder because the Veteran did not seek treatment in 1986 and 1987 and had limited treatment that he discontinued in 2005. The examiner found that the Veteran did not have a preexisting psychiatric disorder; so, no condition was aggravated in service. The examiner also found that the anxiety was not the result of the Veteran’s service-connected hypertension. However, in the section for the rationale, the examiner only noted that there was insufficient evidence. As for the reported incidents in service, the examiner noted that she did not understand what “address the significance” meant. It also was noted that as for providing a medical rationale, she could not provide a medical rationale because she was a psychologist. The April 2020 VA examination is inadequate because although the examiner found that there was no evidence of treatment for any psychiatric problems in 1986 and 1987 when the Veteran stated that his symptoms first started, the service treatment records show that the Veteran went through an alcohol and drug program at that time, which is significant. Furthermore, the examiner did not provide any adequate rationales for the opinions provided, other than to note that there was insufficient evidence. Also, stating that she did not understand what “address the significance” meant and that she could not provide a medical rationale because she is a psychologist is not helpful to the Board. The evidence in favor of the claim includes a January 2011 VA treatment record, which reflects a diagnosis of moderate anxiety and depression. The Veteran reported that he had been medicated for anxiety and depression since 2003. The Veteran reported his symptoms started in April 1986 due to troubles in school and family stressors. He reported having difficulty attempting to pass a course in the military. He experienced more anxiety in 1987 when serving in the Navy, due to adjustment to the military and family stressors. He did not seek any mental health treatment at the time; however, the Veteran attended a Navy Alcohol and Dependency Program (NADSP). In 1992, the Veteran relapsed and was re-referred to NADSP. He reported that he did not get a diagnosis beyond alcohol abuse. The Veteran reported that he was diagnosed with anger management and marital issues in 2003. He then began seeing a psychiatrist, who diagnosed him with an anxiety disorder, and prescribed Wellbutrin. The Veteran reported that in 2005, he stopped taking Wellbutrin; he had an anxiety attack and a breakdown due to family issues; and was laid off from work. The Veteran took 6 weeks off from work for stress, at the time; he was in the Air Force Reserve. The Veteran began taking Wellbutrin again, and as a result, he had issues with being worldwide qualified because he was taking Wellbutrin. The Veteran reported that he retired from the Reserve in October 2010. A November 2011 VA treatment record reflects treatment for anxiety and depression. A December 2011 VA treatment record reflects treatment for adjustment disorder. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current depressive disorder and anxiety disorder arose in service. Although the service treatment records do not show any treatment for a psychiatric disorder during the Veteran’s period of active duty service, this is consistent with the Veteran’s statement that he did not seek treatment during service, but instead attended a Navy alcohol and drug safety action program in 1987 and 1991. Rather than a mental health problem he was diagnosed with alcohol abuse. However, this program along with the Veteran’s statements provide probative evidence of in-service onset of a psychiatric problem. The Veteran is competent to state that he experienced anxiety over fear of further attacks in service after being struck in the head with a frying pan, and adjusting to military life, and that he was prescribed medication in service, which resulted in feeling anxiety. The Veteran also is competent to state that he experienced school and family stressors in service. There is no reason shown to doubt his credibility in this regard. Although there is not a probative medical opinion of record addressing the etiology of the Veteran’s psychiatric disorder, the Board finds that the Veteran continued to experience the same symptoms of anxiety and depression since 1986. The Veteran is competent to report that he experienced symptoms of anxiety and depression during that period. His statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows the Veteran underwent an alcohol and drug program in 1987 and 1991, was treated for a head injury in August 1991, had a positive TB test in November 1990, and was prescribed Seldane and Darvocet, in May 1991, June 1991, and August 1991, which he asserted made him feel anxious as a side-effect. It also is significant that the Veteran was diagnosed with a depressive disorder during his Reserve service. As noted, active military service includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). “Injury” is defined as harm resulting from some type of external trauma. “Disease” is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002. Since a psychiatric disorder is a disease, rather than an injury, it is important to distinguish between the Veteran’s active duty service and inactive duty service. The Veteran has stated that he was in the United States Naval Reserve from August 2001 to November 2003, and in the United States Air Force Reserve from November 2003 to October 2010. Personnel records show the Veteran served in the U.S. Navy Reserve from January 31, 2001 to November 25, 2003 with additional periods of service. These periods presumably included periods of active duty and inactive duty training. While it is not clear when the Veteran was considered on active duty in the Reserve, service treatment records show that the Veteran was treated with Wellbutrin during his reserve service since at least 2004 and eventually had to retire from military service because of the prescription for his depression, which disqualified him in 2010. Overall, the evidence of record demonstrates a current psychiatric disorder, in-service incurrence of a mental health disorder, and competent and probative evidence relating the current diagnosis to military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for psychosis for the purpose of establishing eligibility for Department of Veterans Affairs treatment As an initial matter, the Board notes that the award of service connection for an acquired psychiatric disorder granted in this decision entitles the Veteran to compensation and VA treatment for the service-connected disability, pending the AOJ’s assignment of a disability rating after implementation of the grant of service connection. The Veteran had active service in the United States Navy from January 1986 to July 1996, and the United States Air Force from November 2004 to February 2005 with additional Reserve service. He is thus a veteran of the Persian Gulf War. See 38 C.F.R. § 3.2. Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who develops an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before the following date associated with the war or conflict in which he served: July 26, 1949, in the case of a Veteran of World War II; February 1, 1957, in the case of a veteran of the Korean conflict; May 8, 1977, in the case of a Vietnam era veteran; or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service, for the purposes of eligibility for Chapter 17 benefits. 38 U.S.C. § 1702. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. In this regard, under 38 C.F.R. § 3.384, the term “psychosis” is defined so as to include the following disorders listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5): brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. The evidence of record does not demonstrate the presence of psychosis. In addition, under 38 U.S.C. § 1702 (b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability develops (1) within two years after discharge or release from active service during the Persian Gulf War, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. 38 U.S.C. § 1702 (c) specifies that there is no minimum length of active-duty service required for presumptive eligibility for mental illness under this section. (Continued on the next page)   None of the medical evidence of record shows any diagnosis of a psychosis. The Veteran also testified at the Board hearing that he was not aware of such a diagnosis. See May 2017 Board hearing transcript, p. 25. As the weight of the evidence is against a finding that the Veteran developed any psychosis during the relevant two-year presumptive period, presumptive eligibility for Chapter 17 medical services under 38 U.S.C. § 1702 for psychosis is inapplicable, and the claim must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.