Citation Nr: 21008503 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-31 685 DATE: February 17, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), mood disorder, major depression, and anxiety is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a diagnosis of PTSD conforming to the DSM-V criteria. 2. The weight of the evidence is against a finding that an acquired psychiatric disability manifested during the Veteran’s period of active service, or that it is otherwise the result of a disease or injury during active service, or that it is proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2003 to October 2003. She had additional service in the Naval Reserves from March 1999 to March 2007. The Veteran asserts that she has an acquired psychiatric disability, to include PTSD, due to service and/or due to her service-connected fractures of the left foot and right foot. The Veteran asserts that she was harassed during service. See 12/28/2011 VA 21-0781a, Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Certain chronic diseases, such as psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed inservice stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). As the Veteran’s claimed stressor is not due to combat service nor due to fear of hostile military or terrorist activity, in order to establish service connection for PTSD, what is needed is a current medical diagnosis of this condition (in accordance with DSM-IV/V, presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); credible supporting evidence that the claimed in-service stressor(s) actually occurred; and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fifth Edition (DSM-V) (for claims such as this one, which have been certified to the Board on or after August 4, 2014). The question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or is due to a service-connected disability. The Board concludes that, while the Veteran has current diagnoses of a mood disorder and major depressive disorder, the weight of the evidence is against finding that any acquired psychiatric disability began during a period of honorable service or is otherwise related to an in-service injury, event, or disease, or that she has an acquired psychiatric disability that is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Notwithstanding the foregoing, congenital or developmental defects such as personality disorders are not diseases or injuries for the purposes of service connection. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). A February 2004 Report of Medical History reflects that the Veteran denied ‘nervous trouble of any sort’ and ‘depression or excessive worry.’ 08/19/2015 STR-Medical at 59. A February 2004 Report of Medical Examination reflects that her psychiatric state was clinically evaluated as normal. Id. at 61. An August 2011 VA Mental Health Intake and Assessment reflects that the Veteran was referred for a mental health assessment due to anger management problems and possible depression. She reported anger about her feet and how she was treated during service. She reported being issued boots and shorts that were too small. The examiner diagnosed mood disorder not otherwise specified. 11/01/2013 CAPRI at 173-177. A September 2011 VA mental health progress note reflects a diagnosis of mood disorder not otherwise specified. Id. at 165-168. A subsequent September 2011 VA mental health progress note with a clinical nurse specialist, L.P., reflects the examiner’s comment that the Veteran has many symptoms of PTSD from both military sexual trauma (MST) and also from her childhood. The examiner diagnosed diagnoses of PTSD, MST, and major depression. Id. at 161-162. Subsequent evaluations with L.P. reflect the diagnosis of PTSD and major depression. October and November 2011 VA mental health evaluations reflect an assessment of mood disorder not otherwise specified. Id. at 148-156. An October 2013 VA Mental Health Intake and Assessment reflects the Veteran’s reports of being issued boots and shorts that were too small for her, and she had to wear the too small shorts “in front of 200 men.” She denied being sexually or physically assaulted but reported being sexually harassed. She reported being taunted and humiliated. She reported pain in her feet, anger and loss. The examiner diagnosed anxiety not otherwise specified; rule out PTSD; rule out generalized anxiety disorder; and, major depressive disorder, recurrent. 11/01/2013 CAPRI at 18-22. An October 2013 examination reflects that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD. The examiner stated that the Veteran did not report a traumatic event in service that was consistent with Criterion A of PTSD, DSM-IV. The examiner diagnosed alcohol abuse and mood disorder, not otherwise specified. The examiner stated that the Veteran’s acknowledged level of alcohol use could account for her mood and anxiety symptoms and a personality disorder was also possible. The examiner opined that it was not at least as likely as not that the Veteran’s current diagnosis was the result of an in-service military sexual trauma (MST)-related event because the Veteran did not report any MST. The Veteran’s personal statement of the stressor did indicate sexual trauma, rather she attributed the mistreatment she reported, at least in part, to her gender. A March 2018 examination reflects diagnoses of major depressive disorder with anxious distress. It was noted that under the DSM-V criteria, a mood disorder no longer exists as a diagnosis and that the Veteran’s diagnosis from the examination is a type of mood disorder. The examiner opined that the major depressive disorder with anxious distress was less likely as not proximately due to or aggravated by the service-connected foot disabilities. The rationale was that there was no evidence that the major depressive disorder with anxious distress was associated with her foot condition. The foot condition was incurred in 2003 and the Veteran was first diagnosed with a mental health condition in 2011. There was no evidence that the trajectory of the foot condition was associated with the mental health condition. The Veteran did not report that her depression started in response to worsening pain or the condition of her feet. Her major depressive disorder with anxious distress had followed the expected trajectory of the condition. She did not report that her depression started in response to worsening pain or the condition of her feet. The examiner believed that the Veteran’s resentment and perceptions of the cause of her foot disorders were symptoms of her personality disorder. A March 2018 examination reflects that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-V criteria. The examiner stated that her Criterion A stressor - being forced to wear small shorts and boots that were too small - are not supported by a review of the evidence, as no markers were found in the service records. The 4 stressors she reported on examination (including being asked to exit the plane and purposeful loss of her dress uniform) do not meet criteria A for PTSD. Military personnel records include performance evaluations. These evaluations document that the Veteran met military standards. Personnel records are silent for complaints of harassment or embarrassing treatment during service. STRs are also silent for complaints or treatment related to harassment. STRs are silent for an in-service mental health diagnosis. There are no markers for MST. As there is no Criterion A stressor, there is no diagnosis of PTSD and no opinion is rendered. In May 2019, the Board determined that the examiner’s opinion on secondary service connection was of little probative value because the rationale stated that there is no evidence that the major depressive disorder with anxious distress was associated with her foot condition. The examiner wrote that there was no evidence that the trajectory of the foot condition was associated with the mental health condition. However, in considering aggravation, the examiner must consider the reverse: whether the trajectory of the mental health condition was affected by the foot condition. Thus, another opinion was sought. In December 2019, a psychologist reviewed the claims folder and stated that the Veteran’s most recent examination diagnosed major depressive disorder with anxious distress, other specified personality disorder, and alcohol use disorder. The examiner opined that these disorders are less likely as not related to the Veteran’s military service. The veteran’s STR is silent for mental health treatment. Her anger around her treatment in the service has been documented in her statements, C&P examinations, and VA treatment records. However, this anger does not constitute a mental disorder for which she can be service connected. She has been diagnosed with a personality disorder which likely accounts to some degree for her volatility and acting out. The personality disorder was not, however caused or aggravated by the service or a service-connected condition. Personality disorder traits are enduring patterns of behavior and experience that contribute to maladaptive behaviors. They are rooted in childhood experiences and not aggravated by other conditions on a permanent basis. Rather, limited insight and poor coping contributes to heightened problematic behavior during periods of stress. This is not, however, a permanent aggravation. The examiner found no evidence of aggravation of her mental disorder symptoms, to include symptoms of major depressive disorder with anxious distress, other specified personality disorder, and alcohol use disorder, by her service-connected status post stress fracture, right foot. In the August 2020 Board Remand, it was noted that the evidence of record does not reflect any assertion that MST was incurred during service. Rather, the Veteran has consistently asserted since 2011 that she was the subject of harassing behavior, in part due to her gender. While acknowledging that the Veteran’s complaints of asserted stressors are not contained within her service treatment and personnel records, the Board would not necessarily expect to find such specific assertions in those records. The Veteran is competent to attest to her experiences during service. The role of the examiner is to examine the Veteran and review the medical evidence and provide an opinion as to whether she has PTSD due to her claimed in-service stressors; not attempt to refute her claimed in-service stressors. As fact-finder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Thus, it was determined that the Veteran must be afforded an examination to assess whether she has PTSD due to her claimed in-service stressors of being harassed and embarrassed during service. In September 2020, the Veteran underwent a C&P examination wherein the examiner determined that she did not meet the DMS-V criteria for PTSD. The examiner diagnosed other specified personality disorder with strong schizotypal features. The examiner stated that her symptoms do not, at this time, meet the criteria for any depressive disorder, anxiety disorder, adjustment disorder, substance or alcohol use disorder, or psychotic disorder. The examiner opined that her symptoms unequivocally do not meet the criteria for PTSD or for any other trauma/stressor related disorder. The examiner stated that as noted profusely in prior C&P evaluations, there are no medical records that support that any currently diagnosed condition is related to PTSD. Personality Disorder is a completely separate condition. As such, there is no evidence in medical records that this Veteran’s military service caused this personality disorder. The examiner explained that personality disorders are not caused or incurred in military service. Rather, they are longstanding ‘ways of being,’ often manifesting in late teen years or early adulthood. They are an enduring pattern of inner experience and behavior that deviates markedly from expectations of the individual’s culture, most notably in all or many of the following areas: cognitive, affectivity, interpersonal functioning, and impulse control. This enduring pattern of personality is consistent across situation, is inflexible, causes distress in various parts of the individual’s life (occupational, social, educational), is not attributed to another mental disorder, and is not caused by substances/medication/head trauma. Based on the above, while acknowledging the diagnosis of PTSD by the VA nurse practitioner rendered due to MST and childhood trauma, upon C&P examinations conducted by psychologists in October 2013, March 2018, and September 2020 it was determined that the Veteran did not meet the diagnostic criteria for PTSD. Such examinations were based on consideration of the entire medical evidence of record, the Veteran’s claimed stressors, and a mental status examination. The psychologists determined that the Veteran did not meet the criteria for PTSD. The collective opinions of the psychologists are probative as they are based on the entire medical evidence of record, the Veteran’s lay assertions and claimed stressors, and a mental status examination, and for that reason are more probative than the findings of the nurse practitioner as she did not have access to the Veteran’s claims folder, and while the nurse practitioner characterized the Veteran’s stressor as MST, she has actually asserted harassment, rather than specific MST. While the Veteran believes she has PTSD, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires an assessment by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence described hereinabove. Thus, there is no basis for establishing service connection for PTSD based on the Veteran’s stressors. With regard to a claimed psychiatric disability other than PTSD, the Board concludes that while the Veteran has an acquired psychiatric disability, specifically major depressive disorder and a mood disorder, the evidence of record does not support that such disabilities are due to service. The Board accepts the opinion of the December 2019 examiner as highly probative medical evidence on the subject, as such was based on review of medical records on file, consideration of a prior mental status examination, and contains a detailed rationale for the medical conclusion. See Boggs v. West, 11 Vet. App. 334 (1998). As the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran’s claim. See Owens v. Brown, 7 Vet. App. 429 (1995). As the Board has accepted this opinion as the most probative, it follows that the preponderance of the evidence does not establish that the Veteran has an acquired psychiatric disability due to service. A psychiatric disability was not diagnosed until over 7 years after separation from service, and a continuity of symptomatology is not shown. The evidence of record also does not support a relationship between a psychiatric disability and her service-connected disabilities. The opinion of the December 2019 examiner is probative as it based on consideration of the Veteran’s lay assertions and review of the claims folders. There is no contrary opinion of record. The Board has given consideration to the lay assertions by the Veteran, to include her belief that she has a psychiatric disability due to service and due to her service-connected disabilities. Due to the Veteran’s lay assertions, opinions have been sought which were negative. While the Veteran believes that she has an acquired psychiatric disability due to service and due to service-connected disabilities, she is not competent to provide nexus opinions regarding the issues. The issues are medically complex, requiring knowledge of the interaction between multiple organ systems in the body and the anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As detailed above, the evidence of record does not support a relationship to service. The Veteran’s contentions are outweighed by the opinions of trained medical professionals. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.