Citation Nr: 21006418 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-17 871 DATE: February 4, 2021 ORDER Entitlement to service connection for major depressive disorder is denied. Entitlement to service connection for bipolar disorder is denied. Entitlement to service connection for post-traumatic stress disorder is denied. Entitlement to service connection for schizoaffective disorder is denied. FINDINGS OF FACT 1. There is no credible evidence of an in-service stressor event, and the Veteran does not have a diagnosis of PTSD that meets the DSM-5 criteria. 2. The Veteran’s psychiatric disability (variously diagnosed throughout the appeal as major depressive disorder, bipolar disorder, and schizoaffective disorder) is not etiologically related to a disease, injury or event incurred or aggravated in-service, and the symptoms of the psychiatric disorder did not manifest to a compensable degree within one year after separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for major depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.125. 2. The criteria for entitlement to service connection for bipolar disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 4.125. 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304(f), 4.125. 4. The criteria for entitlement to service connection for schizoaffective disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.384, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from June 1989 to June 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Houston, TX. In August 2018 and October 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s 2019 remand directed the RO to obtain outstanding treatment records from VA and private facilities. Pertinent records from 2014 to 2020 were associated with the claims file following remand. The Board instructed the RO to provide the Veteran with an opportunity to detail his in-service stressor events, which was mailed to the Veteran in November 2019. The RO was also directed to provide the Veteran with a mental health examination to determine the nature and etiology of any psychiatric disabilities. Due to the COIV-19 health emergency, the Veteran was provided with a video telehealth examination using the Acceptable Clinical Evidence (ACE) process. Examination reports were submitted in July 2020, with an addendum opinion dated August 2020. No further development was required by the remand and, as such, substantial compliance has been achieved. Id. at 271 Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for posttraumatic stress disorder requires: (1) medical evidence diagnosing the condition; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Effective August 4, 2014, VA regulation requires that mental disorder diagnoses be based upon the criteria provided in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association. See 38 C.F.R. § 4.125 (a). If VA determines that the Veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the Veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(2). No further corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the Veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the Veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the Veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). 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. 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)(3). If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the Veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant’s testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Certain diseases, to include psychoses, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 ; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. & 2. Entitlement to service connection for major depressive disorder and bipolar disorder The Veteran contends he has a psychiatric disability, including bipolar disorder and major depressive disorder (MDD), that is due to his active duty service. Review of the record indicates the Veteran has multiple psychiatric diagnoses dated from 2001 to the present, to include: agorophobia panic, personality disorder, MDD with psychosis, alcohol dependence and abuse, schizoaffective disorder, polysubstance dependence, and cocaine and amphetamine dependence. The Board’s 2019 remand aimed to clarify the Veteran’s current psychiatric diagnoses for VA compensation purposes and further develop the record. In June 2020, the Veteran was provided a mental health examination to assess the nature and etiology of his conditions. A VA psychologist diagnosed the Veteran with schizoaffective disorder and substance abuse disorder. She declined to provide separate diagnoses for bipolar and MDD because their inclusion is “already a symptom of schizoaffective disorder: Schizoaffective disorder occurs when one meets diagnostic criteria for schizophrenia and one of the subtypes of bipolar disorder. Bipolar disorder, likewise, has as its two main components, Depression and a form of Mania. Therefore, Depressive Disorder & Bipolar Disorder is already subsumed and addressed within the Schizoaffective Disorder diagnosis.” C&P Exam, 7/15/2020, pg 1/16. Additionally, the examiner noted, “The symptoms of the disorder and their resulting impairments overlap. I cannot determine their individual impact without speculation. The Veteran also denied any symptoms associated with this claim. He specifically credited The Lord with taking his negative/painful troubling symptoms away from him. The symptoms of the disorders and their resulting impairments overlap. I cannot determine their individual impact.” pg. 3/16. Similarly, the examiner noted her decision to decline a bipolar diagnosis due to symptoms of hypomania/manic episodes, clinical depression, and symptoms of unipolar depression which are considered in a schizoaffective diagnosis. pg. 11/16. As these prior diagnoses are encompassed in the Veteran’s current diagnosis of schizoaffective disorder, there are no separate diagnoses for service connection. The Veteran’s service treatment records are silent for treatment, symptoms, or diagnosis of MDD or bipolar disorder. On his April 1993 separation exam, a note was added stating, “Any psychological disorders noted at this time?? No.”. STR, 11/5/1993, pg 3. The record reveals the Veteran’s first diagnosis of either condition was almost a decade after separation. There is no evidence linking these previous diagnoses to his military service and the remaining psychiatric claims are discussed below. The Board notes that any diagnosis of a personality disorder is not eligible for VA compensation as personality disorders are not diseases for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9 (2016); Beno v. Principi, 3 Vet. App. 439, 441 (1992) (stating the “[r]egulatory authority provides that personality disorders will not be considered as disabilities”). Thus, any diagnosed personality disorder the Veteran may have is not applicable for service connection consideration. Accordingly, the Board must deny the claim for service connection of bipolar disorder and MDD. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for schizoaffective disorder The Veteran contends his psychiatric disorder, to include schizoaffective disorder, is related to his military service. As stated above, the Veteran has as current diagnosis of schizoaffective disorder as evidenced by his most recent VA examination in July 2020. C&P, 7/15/2020, pg. 1/16. The examiner provided several nexus statements and explanations on the Veteran’s psychiatric conditions. However, it appears the examiner provided opinions based on a belief the Veteran was previously service-connected for schizoaffective disorder. See C&P, 7/15/2020, pg 2. She opined the “Veteran’s underlying mood disturbance was very likely triggered by the stress of a military career and lifestyle that he coped with by self-medicating with drugs and alcohol.” As this was not an adequate nexus statement on the issue of schizoaffective disorder’s relationship to his military service, the RO requested clarification. The RO requested an addendum opinion from the psychologist, instructing her to review the Veteran’s service treatment record and opine whether his disorder is related to his miliary service. She provided an updated opinion in August 2020 with the conclusion, “From the record review and from asking the Veteran for details that he did not provide, there was no evidence that PTSD, Bipolar Disorder, Major Depressive Disorder or Schizoaffective Disorder can be service connected.” C&P, 8/22/2020. She noted without a consistent report of an in-service event, no trauma diagnosis can be rendered. Additionally, she explained that bipolar disorder, MDD, and schizoaffective disorder have “heavy genetic loading and his family was described as not only ‘dysfunctional’ but also as presenting with a lot of mental illness.” The remaining record also indicates the Veteran has a family history of mental disorders specifically of schizophrenia and bipolar disorder, including his father, three uncles, and a nephew. MTR-Non Government, 1/17/2006, pg. 19; MTR-Non Government, 4/11/2006, pg. 22. Further, the examiner noted a belief the Veteran’s condition may actually be substance-induced. She stated, “It would certainly be impossible to differentiate the impact of symptoms of what he appears to currently meet criteria for: Antisocial Personality Disorder, Unspecified Substance Use Disorder (he said he has been 100% abstinent but that is unverifiable), and possibly a mood disorder (such as depression), there are several confounding factors in his clinical profile.” The record confirms a post-service diagnosis of polysubstance abuse in 2004 and of substance abuse disorder at his most recent VA examination in July 2020. The Veteran has a 2017 diagnosis of cocaine dependence, See CAPRI, 7/8/2019, pg. 145; alcohol and stimulant use disorders in sustained remission, See pg 170. Service treatment records also indicate the Veteran was recommended for drug treatment in May 1993 following a positive urinalysis for drug use, for which he rejected and was ultimately discharged from service. See STR, 10/31/2014, pg 5; MTR, 1/17/2006, pg 45. The 2020 VA examiner noted the Veteran’s diagnosis of unspecified substance use disorder is likely “the Veteran’s direct attempt to cope with his symptoms, which include low mood, anergia, insomnia, and anxiety. He continued with the habit of self-medicating and was hospitalized for suicidality as a civilian and when he was incarcerated.” However, when reporting on the Veteran’s mental health status during service, the examiner noted: “His extensive history of drug and alcohol abuse were also reported as potentially significant contributing factors to his mental health status.” C&P, 7/15/2020, pg. 6/16. Additionally, medical records obtained by the Social Security Administration (SSA) show a psychological study was performed on the Veteran in 2003 at San Antonio State Hospital. The treating psychologist believed “a lot of his psychotic symptoms at the time were alcohol/drug related.” MTR-SSA, 7/13/2019, pg. 281/668. The same evaluation revealed evidence the Veteran’s drug and alcohol use began at age 12. MTR, 1/17/2006, pg 45. Another medical expert testified in October 2008, that the Veteran’s substance abuse disorder may be a contributing factor material to disability. See pg 380. The Veteran’s service treatment records are silent for treatment, symptoms, or diagnosis of schizoaffective disorder during service. His separation exam indicated no psychological disorders were to be noted. STR, 11/5/1993, pg 3. Post-service medical records from April 2001 show the Veteran reported he began having auditory hallucinations in October 2000. MTR-Non Government, 4/11/2006, pg 22/75. The Veteran’s diagnosis was years after his separation and the credible evidence of record also does not reflect that the Veteran had a psychosis to a compensable degree within one year of discharge from active duty; hence, the presumption of in-service incurrence does not apply. 38 U.S.C. § 1112 ; 38 C.F.R. §§ 3.307, 3.309. The medical evidence points to substance abuse as causative factors, and service connection is not available for disabilities due to willful misconduct, to specifically include the progressive and frequent use of drugs to the point of addiction. 38 C.F.R. § 3.301. Furthermore, without an in-service event, the elements of service connection are not met. While the Board is sympathetic to the Veteran and has considered his lay statements thoroughly, service connection for psychiatric disorders requires a medical nexus. While the Veteran is competent to report his symptoms, lay persons are not competent to provide opinions on medical issues that fall outside the realm of common knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Mental health conditions are not readily amenable to lay diagnosis or probative comment regarding etiology. The Veteran is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value in this regard. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Accordingly, the claim for schizoaffective disorder is denied. 4. Entitlement to service connection for post-traumatic stress disorder The Veteran contends he has post-traumatic stress disorder (PTSD) as a result of his active duty military service and, specifically, combat experience. He reports experiencing events that trigger nightmares, cold sweats, paranoid behavior towards the government, hallucinations, self-harming behavior, and a constant fear for his safety. He reports the nightmares began his first day of bootcamp in 1989 as he was subjected to humiliation by his commanders, causing him to have suicidal ideations early in his service. He also alleges a specific incident occurred in Izmir, Turkey where he was assaulted by an unknown Turkish male while at a bus stop. Upon thorough review of the evidence, the Board finds that PTSD is not shown. The Veteran does not have a current diagnosis of PTSD meeting the DSM-5 criteria. In the absence of a present disability or chronic symptoms that may be reasonably attributable to an event or incident in service, the Board finds the appeal must be denied. Following the Board’s remand, the Veteran was provided a mental health assessment for PTSD in June 2020. The examiner declined to provide a diagnosis of PTSD and opined the Veteran’s condition is less likely than not incurred in or caused by an in-service injury, event, or illness. She reasoned there can be no diagnosis of PTSD with an absence of a stressor or traumatic event that meets Criterion A. She noted that a verifiable stressor has never been submitted, reported, or described and “despite repeated opportunities and requests for specific or any information about his PTSD claim, there was and is no event.” See C&P, 7/15/2020, pg 1/3; C&P, 7/13/2020, pg 2/3. The examiner further explained that the Veteran remained “unable or unwilling to discuss the stressor; i.e., in our first contact, he claimed it was too difficult to discuss and that he didn’t want to relive those memories. In the second, most recent appointment, he took the position that he was no longer bothered by the stressor because of his return to faith, spirituality and his reliance on The Lord.” See C&P, 7/13/2020, pg 2/3. During the assessment, the Veteran denied having had any specific problems in his military career and did not explain what his trauma was or its impact. Contrary to his prior contentions, he denied any problems in basic training, individual training school, or subsequent coursework. C&P, 7/15/2020, Pg. 5/16. Ultimately, the examiner determined the Veteran to be credible and reliable in reporting events and symptoms. C&P, 7/15/2020, Pg. 10/16. She declined to diagnose the Veteran with PTSD for the above reasons, however, she indicated the Veteran’s symptoms the criteria of another psychiatric disorder, discussed below. The Veteran has failed to provide sufficient detail of a stressor event such that would aid the RO, medical examiners, and the Board in adjudicating his claim. In September 2006, the RO requested the Joint Services Record Research Center (JSRRC) perform a record search in order to verify evidence of combat exposure. An October 2006 memorandum indicated insufficient information was provided to corroborate a combat stressor during the Veteran’s active duty service and subsequent letters were mailed to the Veteran in 2005 and 2006 requesting further information. See VA Memo, 10/3/2006. No response was received from the Veteran. The RO also requested personnel records from the Department of the Navy in September 2006. Three pages were received indicating the Veteran’s history of assignments, none of which indicate foreign service or combat locations. Military Personnel Record, 9/18/2006, pg 2. The remaining records also confirm the Veteran did not engage in combat activities or experience threat of death or life endangerment on the ship. See CAPRI, 9/1/2005, pg 39/75. Although his DD-214 indicates he has three years active duty service at sea, it reports that the Veteran has no foreign service. The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Veteran does not meet the criteria for a diagnosis of PTSD as required for VA compensation purposes; therefore, service connection is not established. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.