Citation Nr: 21008396 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 10-21 837 DATE: February 16, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include an anxiety disorder and posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran never served in Vietnam during active service. 2. The Veteran did not engage in combat with the enemy during active service. 3. The Veteran’s psychiatric disability did not preexist service and is not related to active service. CONCLUSION OF LAW An acquired psychiatric disability was not incurred in service and is not attributable to service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1972 to August 1975, with additional subsequent periods of service in the Navy Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. In a February 2018 Board decision, the Board denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Memorandum Decision, the Court found that the “Board provided its own unsubstantiated medical opinion in declining to address whether the appellant’s service aggravated a preservice disability.” The Court explained that, “[t]he Board acknowledged multiple diagnoses of PTSD based on abuse suffered by the appellant as a child, but provided its own opinion as to the onset of the disability based on the appellant’s entrance examination and the appellant’s own lay statements . . . .” The Board failed to cite any specific medical basis for this determination.” In January 2020, the Board remanded the matter to obtain a medical opinion. The Board finds that there has been substantial compliance with its remand directives. In October 2020, the Veteran, through his representative, submitted new medical evidence, along with a waiver of RO consideration. This decision includes consideration of the new evidence. Entitlement to service connection for an acquired psychiatric disability The Veteran contends that he is entitled to service connection for an acquired psychiatric disability because during service he was scared that people would rob him while he worked in payroll; he had severe depression after his mom suddenly passed away; and now he can’t maintain personal relationships and people “think [he] act[s] like a terrorist.” See Board Hearing Transcript, pp. 8-13. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so- called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 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); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304 (f). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5.” However, since the Veteran’s claim was originally certified to the Board prior to August 4, 2014, the DSM-IV is applicable to this case. The Board notes that there was no psychiatric disability listed on the Veteran’s entrance examination. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran’s disability was both preexisting and (2) it was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran’s claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. In the Court’s Memorandum Decision, it alleged that the Board erred by concluding that the Veteran’s psychiatric disability did not preexist service based on the absence of a psychiatric disability listed on the entrance examination. The Court assigned significance to the fact that the Veteran’s psychiatric disability had been related to events prior to service. In an effort to avoid the appearance of a Colvin violation, in January 2020, the Board remanded the matter to obtain a medical opinion which addressed whether the Veteran’s claimed psychiatric disability preexisted service. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). In a January 2020 medical opinion, a VA psychologist opined the following, “With regard to [question] a, Veteran fails to have experienced a clear and unmistakable (obvious, manifest and undebatable) [] acquired psychiatric disorder [that] preexisted active service . . .Veteran denied any history of mental health services or mental health diagnoses prior to entering military.” The psychologist went on to explain that the Veteran’s PTSD was based on the Veteran’s “incorrect and false reporting of Veteran serving in Vietnam.” The psychologist also referenced the previous VA examination reports and found them helpful in understanding the Veteran’s psychiatric history. Specifically, the psychologist highlighted why it was more likely than not that the Veteran’s psychiatric disability was related to post-service factors. The Board credits the January 2020 medical opinion. The VA psychologist cited to numerous instances in the Veteran’s medical history which support a finding that there was not clear and unmistakable evidence that the Veteran’s psychiatric disability preexisted active service. Therefore, the Board finds that the Veteran did not have a preexisting psychiatric disability and the claim is for service connection. The Board notes that this claim involves Reserve service that includes periods of service known as active duty for training, or ACDUTRA. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reservists or members of the National Guard of any state for training purposes. See 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Of a similar nature, inactive duty for training, or INACDUTRA, is, in general, part-time duty by Reservists or National Guard members for training purposes, sometimes characterized as “weekend drill.” See 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). ACDUTRA is considered active military service for the purpose of establishing VA benefits when the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty during such period. 38 U.S.C. § 101 (24). INACDUTRA is similarly considered, but includes an additional limitation, in that the only covered diseases subject to service connection during such a period of service are acute myocardial infarction, cardiac arrest, and cerebrovascular accident. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (d). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). Here, there are notations referring to the Veteran’s anxiousness during his Reserve service, specifically in relation to treatment for an urticarial rash, also known as hives. In October 1987, a medical doctor described the Veteran’s rash of three weeks with no known allergies. The physician described the Veteran as “a very anxious individual.” The resulting diagnostic impression was that he had an urticarial rash secondary to increased anxiety. Similarly, in February 1988, the Veteran is described as being seen again for what appeared to be a reoccurrence of a chronic medical problem. The Veteran believed the rash to be allergic in nature and was being treated with Benadryl. The same physician from the prior year again diagnosed an impression of allergies versus anxiety urticarial rash. Notably however, there is neither diagnosis of Anxiety Disorder nor any other acquired psychiatric condition at any time during the Veteran’s service, including the relevant period of Reserve duty prior to his discharge in 1989. Furthermore, when explicitly asked to opine on the matter, a VA examining psychologist stated in May 2013 and June 2017 that the Veteran’s currently diagnosed Anxiety Disorder was less likely as not related to these references. Instead, the examiner opined that the Veteran’s current psychiatric disability appeared to be related to post military life stressors including limited job opportunities due to his history of felony incarcerations and his history of drug and alcohol dependence. The examiner further specified that the Veteran was abusing alcohol and illicit drugs during his Reserve service and the noted “anxiety” may have been substance induced. In light of the absence of a diagnosed psychiatric disorder during this period, and the absence of a finding that his current disability is related to any occurrence during those periods, the Veteran is not shown to have become disabled from a disease or injury incurred or aggravated in the line of duty during a Reserve period. Therefore, there can be no period of ACDUTRA that constitutes active military service at this time. Instead, further analysis of this Veteran’s claim will relate to his active duty period of service from August 1972 to August 1975. When the Veteran enlisted for active duty, he was clinically evaluated as having no abnormal psychiatric findings in July 1972. The Veteran responded “no” to questions on his Report of Medical History forms regarding whether he ever had or currently had depression or excessive worry, or nervous trouble of any sort in July 1972, as well as subsequently in Reserve exams in June 1982, May 1984, and later. The Veteran was evaluated as psychiatrically normal at the time of his undated separation examination in or around 1975. There is no medical evidence of any complaint, treatment, or diagnosis of a psychiatric condition during the Veteran’s active military service. With regard to the Veteran’s claimed PTSD stressors, he has offered a several situations during service which he described as stressful events. Some of these situations include: being afraid that other sailors would hurt him due to his role as a payroll clerk with access to money; being on watch during high seas; handling ammunition; serving with a fellow sailor who he believes is now a terrorist; being burned and untreated during a training exercise; being in Vietnam and firing on Vietnamese villages; saving one bullet during a training exercise in case the man behind him was an assassin. See Board Hearing Transcript; November 2011 VA Form 21-4138; December 2011 VA examination; July 2010 Statement in Support of Claim for PTSD; March 2011 VA PTSD Assessment. On the Veteran’s November 2011 VA Form 21-4138, there is a statement from Captain C.M., United States Retired Navy Chaplain. He wrote, “Although Veteran has had several traumatic experiences stemming from childhood, his anxiety increased during service period as Veteran was put in a training class for fighter squadron [and some type of warfare] stationed in NAS Dallas . . . Veteran reports that this was traumatic as he related this information back to his active duty experience.” In December 2016, the Veteran also submitted a buddy statement by a fellow sailor that stated the Veteran was remembered to be troubled by a number of events, including handling ammunition that he knew could explode, being asked to give someone advance pay without a request chit, being involved in a “raid” that broke out among sailors of different ethnicities, and being on liberty in Yokosuka, Japan and being robbed on his way back to the ship. See December 2016 correspondence. Notably, the Veteran is not shown to have personally described the latter two events from this statement at any time. As the Veteran himself has not described the last two events, despite multiple recitations of his military stressors, the Board does not find the Veteran’s friend’s statement to be credible with regard to those two events. The first two described stressful events are found to be consistent with the Veteran’s own testimony, and are therefore found to be credible. As will be discussed below, the medical evidence of record fails to support a finding that the Veteran’s claimed PTSD is based on the claimed stressors. While there is some disagreement among the medical professionals of record as to diagnosis, the evidence is clear that if a diagnosis of PTSD is present, that diagnosis is based upon stressors presented by the Veteran’s history of childhood abuse, not from any stressor related to his naval service. In March 2010, a VA psychology doctoral student, under the supervision of a VA psychologist evaluated the Veteran. She reported the Veteran’s background of childhood abuse and neglect, and history of post-service incarceration. She recorded the claimed stressors of being in danger from other sailors because of his job as a payroll clerk, being on watch one night during high seas, serving with another sailor [REDACTED], who is now a terrorist; being burned during a training exercise, and firing on Vietnamese villages during the war. The March 2010 psychologist determined that although the Veteran found these to be terrifying events, “it is questionable whether these events meet criteria for a Criterion A stressor.” However, the examiner did find a Criterion A stressor based upon the Veteran’s childhood abuse history and diagnosed PTSD due to that childhood abuse. See March 2010 VA PTSD assessment. The VA psychologist further stated that the Veteran had previously been given a diagnosis of depressive disorder but did not report significant depressive symptoms in her interview. She stated that the Veteran did however present with multiple extreme ideas and beliefs, indicating that his military clearance levels and job descriptions are unknown, but that his military service “may have been unlikely to have resulted in his experiences being as severe as reported here.” Based on the foregoing, she notated that more information was needed to establish a diagnosis of psychotic disorder. Nonetheless, her diagnostic impression included diagnoses of PTSD, Psychotic Disorder, Depressive Disorder, and Poly-substance Dependence in sustained remission. In December 2010, the Veteran was afforded a VA PTSD examination where the examiner noted the Veteran’s reported stressors as being taunted by verbal threats from other sailors due to his position as a payroll clerk, and a spark causing fine gunpowder grains in the air to ignite singeing his face, although not bad enough to require medical treatment at the time. Based on these stressors, the examiner found the Veteran’s reported stressors did not meet Criterion A in the DSM-IV for PTSD. The examiner further found the Veteran did not meet Criterion C involving symptoms of persistent avoidance and numbing of general responsiveness. The examiner stated that in order to be diagnosed with PTSD, an individual must meet all criteria for the disorder, not just some or even most. Thus, although the Veteran met Criteria B and D at the time, because he did not meet Criteria A and C, a diagnosis of PTSD was not warranted. Instead, this examiner diagnosed Anxiety Disorder, not otherwise specified, with paranoid features. The Veteran was afforded another VA PTSD examination in May 2013 where the examiner found the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria because the Veteran’s symptoms did not meet the requisite diagnostic criteria. The only service-related stressor noted on this examination was the Veteran being taunted by other sailors who he felt meant to do him harm. The examiner found this to be inadequate to support a diagnosis of PTSD under the DSM-IV, and found that the Veteran did not meet any of the four diagnostic criteria for PTSD under Criterion A, B, C, or D. The examiner noted the Veteran’s reported history of physical, mental, and sexual abuse prior to military service and found that the Veteran’s childhood abuse history “appears to have been considerably more severe than any trauma he experienced in service.” In addition to the VA examinations of record, the Veteran has a significant outpatient treatment history for mental health concerns. In May 2013, a mental health team updated a yearly Outpatient Treatment Plan finding anxiety symptoms, maladaptive substance use with a risk of relapse, unemployment or insufficient income, poor social support, and other financial problems as areas of active focus for mental health treatment. A July 2013 annual exam performed by a physician’s assistant lists an impression of stable PTSD and Depressive Disorder NOS. In September 2013, a psychiatric Nurse Practitioner noted the Veteran’s history as both a victim and perpetrator of child sexual abuse, and that the Veteran reported hearing voices inside his head but found no overt psychosis and a stable mood at the time. In 2014, the Veteran attended a weekly mental health group treatment session for Veterans with Serious Mental Illness (SMI) and/or PTSD. These weekly session notes reiterated that the Veteran was diagnosed with PTSD and depression. A June 2014 outpatient mental health note reflects that the Veteran has diagnoses of PTSD secondary to childhood sexual abuse, anxiety disorder, and polysubstance dependence. This provider reported that the Veteran is very anxious regarding insecurities and fears due to being a felon, but noted the Veteran was sober from alcohol and drugs for a five year period. Anxiety was added to the list of diagnoses in the Veteran’s group treatment environment in August 2014. Subsequent treatment notations confirm that the Veteran’s PTSD diagnosis is secondary to childhood sexual abuse. A June 2016 mental health attending note also reflects a diagnosis of Major Depressive Disorder (MDD). Then, in June 2017, pursuant to Board remand instructions the same examiner that conducted the May 2013 examination conducted an additional review of new evidence within the Veteran’s claims file, confirming his prior determination that it was less likely than not that any currently diagnosed acquired psychiatric condition was incurred in or caused by an in-service injury event or illness. He offered an addendum to his prior rationale, stating that the Veteran does not meet the diagnostic criteria for a diagnosis of PTSD under either the DSM-IV or the DSM-5 standards in this examiner’s opinion. The examiner based this determination, in part, on his finding that the original March 2010 assessment that diagnosed PTSD was based upon an inaccurate factual premise, specifically that of a falsely reported stressor. The examiner stated that the “Veteran appears to have greatly exaggerated his combat experiences to that mental health provider.” Specifically, the Veteran described being stationed in Vietnam and firing on Vietnamese villages. There is no credible evidence of record that the Veteran ever served in Vietnam. His DD Form 214 and other military service records are negative for any service in Vietnam, nor is there any credible evidence of combat with the enemy at any time. On this basis, the original diagnosis in March 2010 is called into question, at least in so far as the diagnosis may be based on the inaccurate stressor. In a 38-page medical report, dated October 2020, Dr. A.I., Board certified psychiatrist, provided a contrary medical opinion regarding the etiology of the Veteran’s PTSD, anxiety and depression. He listed a recitation of the Veteran’s in-service symptoms (as described in previous medical appointments and VA examinations) and the Veteran’s medical predisposition for development of psychiatric disorders due to childhood stressors. Specifically, he stated that the Veteran’s childhood traumas made the Veteran suspectable to experience psychiatric symptoms during service. He provided citation to various medical principles to explain the reasons why the Veteran’s reports of various symptoms of PTSD and other psychiatric disorders may have been misdiagnosed or misinterpreted by previous medical professionals. He opined that it was at least as likely as not that the Veteran’s PTSD, anxiety and depression were related to military service. Based on the foregoing, the Board finds that the preponderance of evidence is against a finding that the Veteran suffers from a psychiatric disability that is related to service. At the onset, the Board finds the Veteran’s accounts of in-service stressors to be largely incredible. The Veteran has taken a kitchen sink approach in his attempt to establish an in-service stressor and has provided false statements. At his March 2010 VA examination, he stated that he served with [REDACTED], who although was convicted for aiding terrorists is not known to have ever served in the U.S. Navy. He stated that he fired on Vietnamese villages, but his personnel records do not show any service in Vietnam. The Veteran has stated that he had a level of security clearance, but there is no evidence to suggest that it was a top-secret security level which would have concealed the fact that he was ever in Vietnam. Further, there is no evidence that the Veteran served in combat and therefore he is not entitled to the combat presumption. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d) (As to claims made by combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.) Although Veterans are entitled to the benefit of reasonable doubt, this does NOT imply that credibility is not a major factor in the Board’s analysis. The Board assigns great probative value to the VA examination reports and little to no probative value to the October 2020 report from Dr. A.I. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). First, the VA clinicians examined the Veteran while Dr. A.I.’s report is based upon a record review. The VA clinicians found that the Veteran greatly exaggerated his current symptoms and responses to several alleged in-service stressors. The Board finds that a clinician who has examined a Veteran may be able to discern the Veteran’s credibility better than someone who has merely relied on the record. As noted above, the Veteran’s credibility has been called into question and therefore any medical opinion based upon an inaccurate factual premise is not reliable. Dr. A.I.’s report does not address the Veteran’s blatant lies that he served with [REDACTED] or in Vietnam. His opinion is apparently based on the belief that all of the Veteran’s statements regarding in-service stressors are true. In any event, Dr. A.I. does not discount the Veteran’s lack of credibility in his assessments. Such a reliance reduces the reliability of Dr. A.I.’s opinion. Second, the Board has the duty to consider the competence, credibility and weight of potential witnesses (expert or otherwise). The Board notes that the VA examination reports were authored by psychologists, while Dr. A.I. is a Board-certified psychiatrist with specialties in child and adult psychiatry. Although in his October 2020 opinion, Dr. A.I. has attached significance to the titles of psychologists, VA has recognized that both a psychologist and psychiatrist are qualified to provide etiological opinions on the psychiatric disabilities. The VA clinicians, including the psychology doctoral student who was supervised by a psychologist, provided in-depth analysis of the Veteran’s psychiatric disabilities. It was obvious that the Veteran suffered from one or more psychiatric disabilities, but the VA examiners opined that it was less likely than not that these were related to in-service stressors. Third, the Veteran’s VA treatment records are replete with multiple lists of existing mental health diagnoses. It is unclear, however, as to whether these are merely reiterating a prior determination, including that based on inaccurate facts, or whether they constitute any sort of confirmation that the listed psychiatric conditions are appropriately diagnosed based on the DSM-IV or DSM-5 in a later practitioner’s opinion. However, what is clear based upon the medical evidence of record is that if there is an accurate diagnosis of PTSD for this Veteran, then that diagnosis is based upon the Veteran’s childhood history of abuse or post-service stressors, rather than any service-related stressor. This conclusion is fully supported by the fact that the Veteran is an unreliable historian regarding such stressors. The Board finds it important to note that although the PTSD diagnosis may be based upon childhood stressors, there is no evidence of record that any psychiatric condition pre-existed this Veteran’s active service, nor does he so contend. As explained above, the January 2020 VA medical examiner opined against a finding that any psychiatric disability preexisted service; indeed, the examiner’s opinion was essentially that it clearly and unmistakably did not. Lastly, the Board has considered whether any acquired psychiatric condition other than PTSD warrants service connection. As previously stated, the Veteran has variously been diagnosed with other conditions of depression and anxiety, most typically Anxiety Disorder NOS. The December 2010 examiner stated the Veteran had reported a history of severe physical, mental and sexual abuse prior to military service and admitted that he was extremely shy and felt like an outcast during his childhood and adolescence. The examiner stated that the Veteran’s childhood abuse history appeared to have been considerably more severe than any trauma he may or may not have experienced in service. On this basis, the examiner found that the Veteran’s anxiety disorder not otherwise specified, with paranoid features is less likely as not cause by or a result of military service. Similarly, the May 2013 examiner stated it is less than a 50 percent probability that the Veteran’s anxiety is related to any incidence in service, including the references to anxiety or anxiousness in his Reserve service treatment records. This examiner found it important to note that the Veteran has admitted to abusing alcohol and illicit drugs during this time and his symptoms of anxiety during Reserve service may have been substance induced. The examiner ultimately opined that the Veteran’s currently diagnosed Anxiety Disorder NOS appears related to post-military life stressors. The June 2017 addendum opinion also finds it less likely than not that the Veteran’s currently diagnosed Anxiety Disorder is related to any incidence in service, including the two references to anxiety in the Veteran’s Reserve service treatment records, and the claimed stressors referenced in the December 2016 letter received from the Veteran’s friend. The examiner stated that the Veteran’s current Anxiety Disorder NOS appears related to post military life stressors including limited job opportunities due to his history of sex felony offenses and his history of alcohol and drug dependence. As noted above, the Board assigns probative value to the VA examination reports which have assessed the Veteran’s statements and provided a negative nexus regarding the etiology of his psychiatric disabilities, other than PTSD. The VA clinicians addressed favorable and unfavorable evidence and concluded that although the Veteran has current psychiatric disabilities, they are not related to active service. Although Dr. A.I. provided a positive nexus for the etiology of the Veteran’s psychiatric diagnoses, other than PTSD, the Board does not assign any weight to this conclusion. As noted above, Dr. A.I.’s report (although lengthy) seemingly provides as much or greater background on himself as on the Veteran. It is based on an inaccurate factual premise, does not include information garnered from a personal interview of the Veteran because such there was no such interview, and does not address evidence that post-service stressors may be the more likely source of the Veteran’s current psychiatric disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.