Citation Nr: 21007941 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-40 174 DATE: February 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and neurocognitive disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD that is linked to combat, fear of hostile military or terrorist activity, or a verified in-service event. 2. The Veteran does not have a current acquired psychiatric disability other than PTSD that is due to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1979 to March 1992. This matter comes before the Board of Veterans’ Appeals (Board) following December 2018 and September 2020 Board remands. This matter was originally on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present condition. Hickson v. West, 12 Vet. App. 247 (1999). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). For a veteran who is not determined to have “engaged in combat with the enemy,” if the claimed stressor is related to a veteran's fear of hostile military or terrorist activity, in the absence of clear and convincing evidence to the contrary, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. In such cases, service connection may be granted if (1) 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 (2) the veteran's symptoms have been medically related to the claimed stressor. See 38 C.F.R. § 3.304(f)(3). Such determinations must be made by mental health professionals who are qualified to perform initial Compensation and Pension (C&P) examinations. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843, 39846-47 (July 13, 2010). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disorder stress disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and neurocognitive disorder The Veteran contends that service connection is warranted for an acquired psychiatric condition incurred as a result of his service. The Veteran’s service treatment records (STRs) reflect the Veteran was found to have a normal psychiatric evaluation in an April 1984 Report of Medical Examination. During service, an October 1990 Report of Medical History shows the Veteran reported a positive response to the question of whether he had ever experienced “depression or excessive worry.” It was noted that it was “job related.” The Report of Medical Examination shows the examiner reported the Veteran was found to have a normal psychiatric evaluation. In the February 1992 Report of Medical History, the Veteran reported he had not experienced depression or excessive worry. The Veteran’s report of Medical Examination shows the examiner noted the Veteran was found to have a normal psychiatric evaluation upon separation from service. In a December 2011 statement, the Veteran reported he was almost ambushed, and was in fear for his life because of hostile military action. In addition, the Veteran reported he had to fire rockets into the enemy convoy and he saw dead body parts. The record reflects that the Veteran served in Southwest Asia from December 1990 to April 1991. A February 2012 VA examiner indicated the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria. The examiner noted the Veteran’s primary complaint was sleep disturbances. The Veteran reported difficulty falling asleep several nights per week and estimated he gets about five hours of sleep per night. The examiner indicated the Veteran’s sleep wake cycle is likely disturbed secondary to his poor sleep habits. The examiner noted although the Veteran denied taking daytime naps, however on his application for service connection he reported taking four naps during the day. The Veteran stated that he has night sweats and vague dreams about being in his tank or about his marital problems. The examiner stated that the Veteran’s symptoms were not consistent with a diagnosis of PTSD due to limited re-experiencing symptoms, no trauma-specific avoidance symptoms, and no symptoms of increased arousal other than sleep disturbances. In addition, the examiner reported the Veteran stated that he does get depressed “a lot” and related this to being unemployed and having marital problems. The examiner stated that due to concerns about self-report data and absence of corroborative evidence, it is not possible to state whether the Veteran does in fact suffer from another psychiatric condition or whether any such condition has existed since service. Further, the examiner stated that he felt confident ruling out PTSD as a diagnostic consideration because any current social and occupational impairment reported by the Veteran are felt to be secondary to medical factors rather than psychiatric symptomology. Furthermore, the examiner noted the Veteran was given a self-administrated screening measure comprised of psychiatric and cognitive conditions that are not typical experiences of persons with actual psychiatric disorders or cognitive symptoms. The Veteran scored a total score of 33, a total score above 14 indicates an attempt to intentionally portray oneself in a negative light. The examiner also reported there was no evidence of occupational impairment while the Veteran was employed, and the Veteran reported that he got along well with others. The Veteran stated that he does not get to socialize because of his wife’s tendency to be overprotective but he has one friend from the military he speaks with regularly. In an April 2012 VA treatment note, the examiner reported the Veteran denied memory issues, mood issues, but reported his sleep pattern is interrupted. The examiner noted, “his neck is at least an issue as his nocturia.” Further, the Veteran denied emotional disturbances, illicit drug use, and alcohol problems. Subsequently, a May 2013 private mental health evaluation from Dr. K.M. was provided by the Veteran which noted an Axis I diagnosis of PTSD. Dr. K.M. noted the Veteran reported he cannot sleep, wakes up in a sweat, and that he has nightmares. The Veteran reported he suffered from irritability and anger. Dr. K.M. did not indicate whether the Veteran’s file had been reviewed. Also, Dr. K.M. noted current symptoms (e.g., psychomotor activity, speech, thought process, mood, affect, ideations, orientation, memory, etc.) but failed to specifically address the diagnostic criteria for PTSD. A November 2013 VA treatment report reflects a negative PTSD score. In an April 2014 PTSD statement, the Veteran stated that his PTSD stressor was that he saw body parts of soldiers while in Baghdad and then his unit was almost ambushed in Saudi Arabia, where he witnessed the death of fellow soldiers. The Veteran’s wife stated she has noticed changes in the Veteran’s sleep such as nightmares, sweating and jerking. In addition, many nights the Veteran is unable to sleep well or go to sleep at all and seems to be going through depression. She also stated that the Veteran does not want to go anywhere away from their home. The Veteran underwent further VA examination in July 2014. Applying DSM-V criteria, the examiner again failed to find grounds for a diagnosis of PTSD or any other mental disorder. The examiner noted the Veteran’s symptoms included anxiety and chronic sleep impairment. The Veteran reported dreams a few times per week and that he may awake with night sweats. The examiner opined the Veteran’s claimed PTSD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated there was no psychosocial dysfunction severe enough to warrant a diagnosis of chronic PTSD identified, and as per DSM-V he does not meet the full criteria for PTSD. The examiner noted the Veteran worked full-time for 12 years post military service with a company, five years or so with another company until 2008, and his reason for retirement was due to a neck injury from a civilian job. In a May 2017 VA treatment note, the examiner reported the Veteran suffered from depression. The examiner noted the Veteran complained of not getting along with a lot of people and that he stays to himself often. In addition, he has trouble sleeping and has nightmares. The Veteran also reported he sort of snaps when he hears a sudden loud noise. A September 2017 VA treatment note reflects that the Veteran was dealing with depression, a marital separation, lack of self-confidence, and communication issues. The examiner reported the Veteran showed depressive symptoms of feeling depressed and hopeless, impaired appetite due to overeating at times, fatigue, sleep disturbance and anhedonia. The Veteran denied suicidal or homicidal ideation, however he indicated that his problems make it extremely difficult for him to take care of things at home and get along with others. The examiner noted the Veteran reported he wanted to file a claim for PTSD and was informed that his current diagnosis was more about insomnia and depression than PTSD, but he could file a claim if he wanted. The examiner diagnosed the Veteran with major depression recurrent moderate, neurocognitive disorder unspecified and R/O unspecified stressor disorder. In an August 2018 VA treatment note, the Veteran reported he had restless sleep when he came back from the Gulf War. He worked the night shift at his job, so he had trouble sleeping as on the night shift, and he could not sleep during the day. The Veteran stated he would break out in sweats and have nightmares of people running and getting blown up. Further, he stated he gets two to three hours of sleep at night. Furthermore, he prefers to be alone and he was crowd avoidant. He is no longer working and on disability due to an injury on the job. He was injured lifting heavy stuff while working building firetrucks. He said he was depressed because he cannot do as much as he used to do. He tried to stay busy working in the house and cutting his grass. He avoided television as a trigger for his nightmares and flashbacks. Additionally, the Veteran reported he has felt like harming himself but has no plan or intent. The Veteran stated he hears voices on occasion, calling his name every couple of months but denied visual hallucinations. He also reported he and his wife “fuss” often. In September 2019, the Veteran was afforded a new VA examination. The examiner opined the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran does not have a current mental disorder diagnosis that meets DSM-5 criteria, based on findings from the disability evaluation, which included objective evidence of invalid self-reporting, in addition to a thorough review of medical records. The examiner noted the Veteran reported on a typical day, he wakes up at six a.m., plays games on his tablet, will clean up a little, fix the bed, take a bath, and he may go outside. He reported that he usually goes to bed around 11 p.m. and that it takes approximately 15 minutes to fall asleep. The Veteran denied current difficulty maintaining sleep and reported he achieves seven hours of restorative sleep. In addition, the examiner noted the Veteran’s cognition, impulse-control, insight and judgment were observed to be intact. There was no obvious impairment in thought process, thought content, or communication. The Veteran denied current suicidal or homicidal ideation, plan, or intent. The examiner stated, while the Veteran's reported military stressors have been conceded and he vaguely endorsed the presence of various anxiety and depressive symptoms during the examination, there is no consistent, objective evidence of a mental health condition in the Veteran's medical record during or following service. The Veteran's separation exam was silent regarding the presence of a psychiatric abnormality and the Veteran has repeatedly denied the presence of symptoms meeting the diagnostic criteria for PTSD. In addition, the Veteran's performance on symptom validity testing administered during the evaluation indicates that he endorsed a remarkably high frequency of symptoms that are improbable of individuals with actual psychiatric or cognitive disorders. Notably, his score was greater than three times the suggested cut-off score and he endorsed 12 out of 15 items designed to assess the degree to which the respondent endorses bizarre symptoms of psychosis not typically present. As such, there was no objective evidence of pathology to render any diagnosis. The examiner opined that while a lack of objective evidence prevents this examiner from accurately determining the presence of any psychiatric diagnosis at this time without undue speculation, it is clear from a thorough review of medical records, the Veteran does not meet DSM-5 criteria for a diagnosis of PTSD and “there is no evidence of a nexus [between] his most recently diagnosed ‘major depression,’ and ‘neurocognitive disorder and service.” In September 2020 the Board remanded the Veteran’s claim for an addendum opinion for additional commentary. In September 2020, the VA examiner opined that the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated as noted in the September 30, 2019 exam, “there is no consistent, objective evidence of a mental health condition in the Veteran’s medical record during or following service.” The examiner stated that in the October 18, 1990 periodic examination, the Veteran endorsed historical depression or excess worry that was reportedly job related, but the Veteran did not endorse this same complaint upon discharge. Further, the Veteran does not endorse this same complaint at discharge and there is no evidence of continuous complaints of either depression or anxiety/excessive worry since the Veteran’s discharge in March 1992. Specifically, as documented in the September 30, 2019 examination, the Veteran’s February 4, 1992 separation examination was silent with regard to any psychiatric condition and his post-military medical records clearly document repeated negative depression screens on December 24, 2008, October 22, 2010, September 11, 2012, May 15, 2013, and November 23, 2015. The Veteran’s first positive depression screen occurred on May 24, 2017, and his former diagnosis of "major depression" occurred in August 2017, greater than 25 years following his separation from service. Additionally, the examiner stated in 2017 the Veteran endorsed the presence of depressive symptoms due to a non-service-related neck injury that occurred in/around 2008. As such, a nexus between the August 2017 "major depression" diagnosis and the Veteran's military service cannot plausibly be established. Furthermore, the examiner stated with regard to the former diagnosis of “Neurocognitive disorder unspecified,” given by a VA psychiatrist on August 17, 2017, this isolated diagnosis was based solely on a cognitive screen (versus neuropsychological testing), without utilization of a performance validity measure. Additionally, there was no evidence of marked cognitive impairment at the time of the September 20, 2019 examination. The examiner stated, as such, no such diagnosis was warranted at the time of the September 30, 2019 examination. As noted in the September 30, 2019 DBQ, "from a psychological perspective, the Veteran is capable of performing ADLs and IADLs without assistance. The Veteran manages finances and medication." The examiner also stated, the Veteran was “oriented x 4” and his cognition was observed to be intact at the time of the September 30, 2019 examination. Notably, the August 2017 diagnosis was noted as being "unspecified", with no identified etiology. Given the lack of complaints or evidence of cognitive impairment during the Veteran's military service, as well as lack of continuous complaints or evidence of cognitive impairment since the Veteran's separation from service in March 1992, a nexus between the former diagnosis of "Neurocognitive disorder unspecified" made in August 2017 and the Veteran's military service cannot plausibly be established. In addition, in regard to the Veteran’s reported sleep disturbances related to his claimed psychiatric disorder, the examiner opined the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As clearly noted in the September 30, 2019 DBQ, when specifically queried regarding sleep disturbance, "The Veteran reported that he usually goes to bed around 11 PM. He reported that it takes approximately 15 minutes to fall asleep and he denied current difficulty maintaining sleep. The Veteran also reported he achieves seven hours of restorative sleep." This self-report is not consistent with a sleep-wake disorder, to include Insomnia Disorder. As such, there was no evidence of pathology to render such a diagnosis at the time of the September 30, 2019 exam. With regard to the “Insomnia D/O” diagnosis given on July 13, 2017, this diagnosis was given by an LCSW and without adequate discussion of an approximate timeframe of onset of the reported sleep disturbance. Notably, the Veteran was then evaluated by a VA psychiatrist in August 2017, who did not provide a diagnosis of Insomnia Disorder, or any other sleep-wake disorder. The Veteran's STRs are silent with regard to any complaints of sleep disturbance and there is no evidence of continuous complaints of sleep disturbance following the Veteran's discharge in March 1992 and the isolated Insomnia Disorder diagnosis in 2017. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau, supra. To the extent that the Veteran has indicated that he currently has PTSD, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. In addition, there is no credible medical or lay evidence that any other psychiatric disorder is related to the Veteran’s service. Further, as the question of causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, whether the Veteran currently has PTSD, or another psychiatric disorder related to service falls outside the realm of common knowledge of a lay person. Consequently, his statements as to a current diagnosis of a psychiatric disorder that is related to his service are not probative. The Board finds that the September 2019/2020 VA examiner’s opinion is highly probative, as it is based on review of the claims file and interview, examination, and diagnostic testing of the Veteran. The author of this opinion is a psychologist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The opinion contains a highly detailed discussion of the Veteran’s pertinent history, and he gives an in-depth explanation of the diagnostic testing that he performed and of the Veteran’s scores and results. He explains the deficiencies in the psychiatric diagnoses that appear in several of the Veteran’s VA medical records. Although the May 2013 private treatment note indicates a finding of PTSD, Dr. K.M. did not indicate whether the Veteran’s file had been reviewed. Also, Dr. K.M. noted current symptoms (e.g., psychomotor activity, speech, thought process, mood, affect, ideations, orientation, memory, etc.) but failed to specifically address the diagnostic criteria for PTSD. Thus, the diagnosis does not persuasively hold up against VA examinations that actually addressed the specific criteria. Throughout the Veteran’s medical records there are inconsistent reports of PTSD. In the absence of a credible diagnosis of PTSD, the other elements of service connection for this claim need not be addressed. In addition, the Veteran’s report of depression has not been linked to the Veteran’s service. As indicated by the September 2019/2020 VA examiner, the Veteran’s positive depression screen occurred on May 24, 2017, and his former diagnosis of “major depression” occurred in August 2017, greater than 25 years following his separation from service. Additionally, the examiner stated in 2017 the Veteran endorsed the presence of depressive symptoms due to a non-service-related neck injury that occurred in/around 2008. Furthermore, an August 2018 VA treatment note shows the Veteran reported he was depressed because he cannot do as much as he used to do. The September 2019/2020 examiner also stated, lack of complaints or evidence of cognitive impairment during the Veteran’s military service, as well as lack of continuous complaints or credible evidence of cognitive impairment since the Veteran’s separation from service in March 1992 did not support a nexus between the former diagnosis of “Neurocognitive disorder unspecified” and the Veteran’s service. In short, the Board finds that the evidence does not persuasively establish that the Veteran has a current acquired psychiatric disability, to include PTSD, major depressive disorder, and neurocognitive disorder that is due to service. (continued on next page) The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.