Citation Nr: 21006829 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 07-21 896 DATE: February 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disability to include PTSD due to a disease or injury in service, to include specific in-service injury or disease. 2. An acquired psychiatric disability to include PTSD is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability to include PTSD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a claim to reopen the matter of entitlement to service connection for PTSD. The Veteran submitted a notice of disagreement (NOD) in August 2006 and a statement of the case (SOC) was issued in June 2007. He perfected a timely appeal in July 2007. In March 2007, the Veteran testified at a personal hearing before a decision review officer. A transcript of the hearing has been associated with the VA claims file. In a January 2013 decision, the Board reopened and remanded the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability to include PTSD. The Veteran’s claim was additionally remanded by the Board in February 2017, January 2019, and August 2020. As will be discussed below, a review of the record reflects substantial compliance with the Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in October 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for psychoses if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). 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(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. In this matter, the Veteran seeks service connection for an acquired psychiatric disorder to include PTSD, which he contends was incurred during his military service. Specifically, he reported several stressors including exposure to rocket attacks and combat situations aboard the U.S.S. Tom Green. The Veteran has alternatively asserted entitlement to service connection for a psychiatric disability as secondary to his service-connected disabilities. See the Written Brief Presentation dated August 2020. To this end, the Board notes that the Veteran is service-connected for diabetes mellitus, type II, diabetic nephropathy with hypertension, bilateral eye disabilities, and peripheral neuropathy of the right and left lower extremities. On review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The Veteran served on active duty from July 1967 to April 1969. His service treatment records (STRs), including the April 1969 separation examination, did not document any psychological complaints or diagnoses. The Veteran’s service personnel records show that, in April 1968, he was commended by the commanding officer of the U.S.S. Tom Green for outstanding performance of duty during an attack by Vietcong insurgents. Accordingly, his in-service stressors of exposure to rocket attacks and combat situations are corroborated to that extent. 38 U.S.C. § 1154. VA treatment records dated in November 1989 showed that the Veteran voluntarily sought treatment for depression after experiencing a series of financial hardships. The Veteran reported a history of gainful employment dating from his April 1969 military discharge through November 1988. The Veteran reported that he has since undergone increasing financial difficulties. See the VA treatment records dated November 1989. He was diagnosed with dysthymic disorder. Id. VA treatment records dated in January 1990 documented a diagnosis of adjustment disorder with depressed mood. Major depression was indicated in April 1992 and diagnoses of depression and psychogenic eructation were noted in March 1995. VA treatment records dated in March 1996 documented diagnoses of major depression and dysthymic disorder since 1989. The Veteran was afforded a VA examination in November 1996 at which time the examiner noted, “[t]here is some question about his having been exposed to some combat experiences in Vietnam, but these were not explored, since they were not essentially focused on the patient and the diagnosis of PTSD was not entertained at various other points in his records.” The examiner noted that the Veteran’s treatment provider, Dr. P., who saw the Veteran in March 1996, “felt very clearly that this was a question of mood disorder, rather than of PTSD.” The November 1996 VA examiner confirmed a diagnosis of major depressive disorder (MDD). VA treatment records dated in August 2005 noted, “[w]e received many reports of staff observations during the patient’s stay that his claimed level of mental and physical distress was entirely inconsistent with what staff observed.” VA treatment records dated in October 2006 noted that the Veteran reported his brother had not been the same since Vietnam. The treatment provider indicated that the Veteran had a diagnosis of dysthymic disorder and possible PTSD. See the VA treatment records dated August 2005 and October 2005. The Veteran was afforded a VA examination in March 2006 at which time the examiner noted the Veteran’s reported military stressors, as well as a report of experiencing family problems (parents’ illness) during service. The examiner noted that the Veteran’s treatment records have recently included a diagnosis of PTSD, without a formal PTSD evaluation. The examiner stated that the Veteran has not reported a traumatic event that meets the DMS-IV criterion A for a diagnosis of PTSD. The examiner further stated, “[w]ith current test scores indicative of overreporting and the history of malingering while on an in-patient unit, the Veteran’s reliability with regard to his symptoms and their severity must be questioned.” The examiner continued, “[t]he Veteran does meet [a] diagnosis for MDD, but this did not start in the service nor was evident the first year after discharge, therefore it is deemed unrelated to military service.” VA treatment records dated in July 2007 show that the Veteran’s active problem list included a diagnosis of PTSD. See also the VA treatment records dated May 2008. The Veteran was afforded a VA examination in March 2016 at which time the examiner confirmed a diagnosis of unspecified mood disorder. The examiner stated, “[t]here is not evidence in Veteran’s c-file that he had direct exposure to rocket explosions. The second and third stressors do not meet criterion A for a diagnosis of PTSD.” The examiner continued, “[c]onsistent with multiple past evaluators and treatment providers, it is the opinion of this examiner that this Veteran does not meet criteria for PTSD or any other trauma related condition.” The examiner explained that the Veteran “is primarily reporting experiences that do not meet criteria for PTSD and one stressor that is highly unusual and not consistent with information in c-file or history of the ship.” The examiner stated, “Veteran did not report a single symptom of PTSD during clinical interview. His primary complaint was worry about his finances. Finally, psychological testing is not consistent with PTSD and PTSD symptoms were generally denied or below clinical cutoffs for diagnosis.” The examiner concluded, “[t]here is no evidence for any type of acquired psychiatric disorder that originated during military service or that was caused by events during military service. Given that the Veteran has been consistently diagnosed with depression or bipolar disorder by multiple providers . . . an unspecified mood disorder diagnosis will be maintained.” A VA medical opinion was obtained in March 2017 at which time the examiner stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner stated, “[t]he Veteran does not meet criteria for PTSD. While his military personnel file does include Administrative Remarks that document Veteran’s exposure to combat and his chart does contain diagnoses of PTSD and rule-out PTSD, the preponderance of evidence points to the absence of this disorder.” The examiner explained, “[o]f the treatment notes examined by this writer that do include diagnoses of either PTSD or rule-out PTSD, none of them include comprehensive delineation of symptoms that indicate threshold symptoms for the disorder. Also, Veteran’s psychiatry notes since 2011 have included diagnoses of mood disorder, not PTSD.” The examiner further stated, “[g]iven that the Veteran has been consistently diagnosed with depression or bipolar disorder by multiple providers . . . The current author concurs with the 2016 C&P examiner’s opinion that the Veteran’s diagnosis is best described as the DSM-5’s unspecified depressive disorder.” The March 2017 VA examiner further reported that documentation in the Veteran’s medical history “places the onset of [the] Veteran’s mood symptoms long after his military service and contextualized Veteran’s distress in terms of stressors unrelated to his military history. Thus, it is less likely than not that the Veteran’s unspecified depressive disorder . . . was due to or incurred during Veteran’s military service.” An additional VA opinion was obtained in April 2018 at which time the examiner reiterated that that none of the Veteran’s treatment providers’ documentation from 1997 through 2012 “include comprehensive assessment of PTSD which indicated that the Veteran met full criteria for the disorder. Of the documentation, written by other providers, that include diagnoses of either PTSD and rule-out PTSD, none of the notes reviewed by the current writer include comprehensive delineation of symptoms that indicate threshold symptoms for the disorder.” A November 2019 VA medical opinion indicated that the Veteran’s records show a history of dysthymic disorder, MDD, unspecified mood disorder, and bipolar disorder. The examiner noted that current records show a diagnosis of depressive disorder. The examiner stated, “[a]t one point, the bipolar disorder was added to the record but it is not clear why, as no record documents any manic episode that would be required for that diagnosis.” The examiner explained that the Veteran has been prescribed medication that is used to treat bipolar disorder, but it is also used to augment medication effects in order to augment treatment for depression. The examiner stated that the Veteran’s treatment records do not show that he has ever been treated for a manic episode and he has consistently denied symptoms of mania. The examiner explained, “the diagnosis of bipolar disorder that is present in some past medical records is in error.” The examiner indicated that the Veteran’s medical history documents regular treatment for depression dating back to 1992. The examiner thoroughly reviewed the Veteran’s medical history and concluded, Given that the depression began 20 years after service and has not been documented in records to be due to in-service events such as exposure to enemy fire, but rather has consistently been documented as being due to post-military events and unfortunate circumstances or poor life choices (not paying taxes for several decades resulting in significant difficulty with the IRS), it is less likely than not that the Veteran’s depression (in any form to include MDD, dysthymic disorder, or unspecified mood disorder) is due to military service or the documentation of exposure to enemy fire 4/1968. In an August 2020 Written Brief Presentation, the Veteran’s representative asserted that the Veteran’s psychiatric conditions are secondary to his service-connected conditions. The Veteran’s representative cited an online article in support of his contentions involving the overlap of psychiatric symptoms and pain syndromes. Pursuant to the August 2020 Board Remand, the Veteran was afforded a VA medical opinion in September 2020 at which time the examiner indicated that the Veterans’ diagnosed depression (MDD, dysthymic disorder, and unspecified mood disorder) is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition.” The examiner explained that, consistent with the November 2019 VA medical opinion, the “ [V]eteran did not have diagnosable clinical depression until 20 years after discharge from military service. Treatment records document his depression as first occurring [in] 1988 and treated in 1989 being due to post military events/circumstances of losing a job in Morgantown, losing his business, losing most of his belongings in a house fire, difficulties with the IRS related to not paying taxes for 27 years, and other significant financial problems. The records do not document service-connected medical conditions as being related to, or a cause of his depression. There is no evidence showing a relationship between the depression and these service-connected conditions; for example, no onset of the depression after diagnosis of the medical conditions, no worsening of the depression in direct relation to worsening of the medical conditions, or alleviation of the depression with any alleviation in the medical conditions, or any correctional/variation whatsoever between the depression and service connected medical conditions. The evidence shows that the depression has actually improved over time as the service-connected medical conditions have emerged and worsened. The September 2020 VA examiner noted that the article mentioned by the Veteran’s attorney in August 2020 is not a scientific medical record. The examiner explained that it is not a medical research study and does not have an author, “so no examination of the veracity of the statements in the article can be appropriately made. The article does refer to two research studies, but fails to provide references for the studies themselves, so no objective evaluation of that information can be made.” The examiner explained, “[t]he referred-to articles are about musculoskeletal pain and fibromyalgia and how exercise and psychiatric medications can be helpful in the treatment of those conditions. The Veteran does not have these conditions so these studies mentioned are not relevant to this case.” The examiner concluded that it is therefore “less likely than not that the Veteran’s depression is due to service-connected diabetes, nephropathy with hypertension, eye disorders, bilateral neuropathy, including associated pain.” She opined, “[t]he records show the depression has been due to post military life circumstances, choices and events and not service-connected medical conditions.” The examiner additionally explained that the Veteran’s depression was not aggravated beyond natural progression due to his service-connected disabilities. The examiner explained, “[o]ver time, the Veteran had fewer incidents of hospitalizations for depression and didn’t require psychotherapy. He did have periods of being on psychiatric medications. This shows alleviation and not an exacerbation of the disorder of depression over time.” When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the evidence of record, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran’s active duty service outweighs the medical evidence suggestive of a nexus. The Board additionally finds that the preponderance of the most probative evidence establishes that the Veteran’s diagnosed depression is not caused or aggravated by his service-connected disabilities. In particular, the November 2019 and September 2020 VA medical opinions were based on a thorough review of the record, including the Veteran’s statements, and analysis of his medical history and the pertinent medical literature. The Board therefore places significant weight on the cumulative findings set forth by the VA examiner who provided the November 2019 and September 2020 medical opinions. See Nieves-Rodriguez, 22 Vet. App. at 295 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Significantly, in the November 2019 and September 2020 medical opinions, the VA examiner discussed the Veteran’s medical history including his self-report of military and life stressors, as well as the progression of his psychological symptomatology. The Board has carefully considered the contentions of the Veteran that he suffers from a diagnosed psychiatric disability, which was incurred during his military service and/or as secondary to or aggravated by his service-connected disabilities. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran’s lay theory regarding the etiology of his psychiatric disability is contradicted by the conclusions set forth in by the November 2019 and September 2020 VA medical opinions, which specifically considered the Veteran’s lay statements and in-service symptoms. The Board finds the specific, reasoned opinions of the trained health care provider who provided the November 2019 and September 2020 VA opinions to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, however, the Veteran’s contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed psychiatric disorder are contradicted by the findings of the November 2019 and September 2020 VA examiners who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinions. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the overall evidence, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran’s claim that he suffers from an acquired psychiatric disorder, to include PTSD, which is related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.