Citation Nr: 21008771 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-33 630 DATE: February 18, 2021 ORDER Service connection for an acquired psychiatric disability is denied. REMANDED Service connection for joint and muscle pain, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. A total disability rating based on individual unemployability (TDIU) prior to September 23, 2014 is remanded. FINDING OF FACT An acquired psychiatric disability is not attributable to service, has not been caused or aggravated by a service-connected disability, and psychosis was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to June 1993 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2011, March 2013, and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In March 2019, the Board remanded the above claims for further development. At the time of the March 2019 remand, a claim for service connection for a respiratory disability was also remanded. However, in a subsequent rating decision of October 2020, the RO granted the claim. As such, the matter of service connection for a respiratory disability is no longer in appellate status and will not be addressed below. As a matter of clarification, the Board has recharacterized the claim for a TDIU to include only the period of the appeal dated prior to September 23, 2014. Since September 23, 2014, the Veteran has been in receipt of both a 100 percent schedular rating as well as special monthly compensation (SMC) under 38 U.S.C. § 1114 (s)), which renders moot the matter of entitlement to a TDIU beyond September 23, 2014. See Herlehy v. Principi, 15 Vet. App. 33 (2001); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the matter of a TDIU prior to September 23, 2014 remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Service connection for an acquired psychiatric disability is denied. VA provides disability compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Additionally, for certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifest to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in conformance with the Diagnostic and Statistical Manual for Mental Disorders (DSM) criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Turning to the merits of the claim, the Veteran has current bipolar disorder and alcohol use disorder in remission, documented, for example, on VA examination in July 2019. On a May 1986 Medical Prescreening form, the Veteran raised no psychiatric complaints. Subsequent service treatment records (STRs) do not document any complaints, diagnoses, or treatment pertaining to any psychiatric problems. On his Report of Medical History at separation, the Veteran reported having nervous trouble. On the accompanying Report of Medical Examination at separation, however, the examining physician found no psychiatric abnormalities. There are no records of psychosis dated from within one year of discharge. At the August 2018 hearing, the Veteran testified that he experiences depression, anxiety, and anger related to his service-connected disabilities and the pain and limitations they cause. He also reported that he has PTSD related to an incident in service wherein a pedestrian was killed by a vehicle in which he was a passenger. The Veteran further documented the stressor regarding the pedestrian in a May 2007 VA Form 21-0781a in support of his claim for PTSD. He was unable to provide identifying details, such as the name of the pedestrian. In a January 2008 VA Form 21-4176 (report of Accidental Injury in Support of Claim for Compensation), he stated that the incident occurred after duty at 12:00 p.m. on August 14, 1988. In a December 2011 VA treatment record, he reported that the incident occurred at 2:00 a.m. and that the pedestrian was fleeing law enforcement at the time. On VA examination in March 2016, he reported that the accident occurred sometime after midnight in 1998. In an August 2018 private medical report, the Veteran reported that the incident occurred on August 18, 1988 after he had been fishing and was driving back from the ocean. He reported that he could smell alcohol on the pedestrian. He stated he saw a psychiatrist the next day. Attempts were made to verify the incident, including through the North Carolina Division of State Highway Patrol, the Collision Report Division of the Department of Motor Vehicles (DMV), and the Crash Reports Unit of the DMV. In June 2011, the RO issued a Formal Finding describing the actions taken to verify the stressor, and its determination that there was insufficient information available to meaningfully research the event further. The Board’s review of the STRs do not reveal any indication of a motor vehicle accident, or an appointment with a psychiatrist. The Board finds the Veteran’s reports regarding the pedestrian stressor are not credible given the inconsistencies of his accounts. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). He has been unable to provide identifying or consistent information regarding the pedestrian, and the details of the accident, including time (day or night), date, and events from earlier in the day, have varied widely. On the matter of the etiology of the current psychiatric disability, the record contains several opinions. In June 2011, the Veteran’s wife, who stated that she is a psychologist, submitted a letter on his behalf. She described the Veteran’s symptoms of PTSD and generally related them to the pedestrian incident in service. On VA psychiatric examination in March 2016, the examiner found no current diagnosis. As such, an opinion concerning etiology was not provided. In an August 2018 private medical report of Dr. H., the Veteran was diagnosed with PTSD as well as an adjustment disorder with mixed anxiety and a depressed mood. Dr. H. opined that the Veteran’s PTSD is related to the in-service pedestrian accident, and the remaining psychiatric disorders are secondary to the Veteran’s “multiple services [sic] connected medical problems.” On VA examination in July 2019, the examiner reviewed the claims file and examined the Veteran. She diagnosed the Veteran with unspecified bipolar disorder and alcohol use disorder in remission. She determined that the criteria for a diagnosis of PTSD under the DSM had not been met. Further, she opined that the current psychiatric disabilities were less likely than not incurred in or caused by service. She explained that bipolar disorder is a mood disorder that would not be caused by any trauma exposure, and there was no indication of an onset during active duty. In October 2020, the 2019 examiner provided an addendum opinion addressing the matter of secondary service connection. She opined that it is less likely than not the Veteran’s psychiatric disabilities have been caused or aggravated by any service-connected disability. She listed his service-connected disabilities, but explained that bipolar disorder is a primary condition, and there is no plausible connection, by way of causation or aggravation, between it and those medical conditions. She stated that bipolar disorder is not a psychiatric disability that can be caused by or be secondary to a medical condition. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the Veteran’s psychiatric disability is related to any aspect of active military service, including any reported stressor, or to any service-connected disability. His stressor is unverified and his reports of the incident are not credible as discussed above. While the Veteran reported experiencing nervous trouble on his Report of Medical History at separation, his STRs are silent for pertinent diagnoses or treatment. His service separation examination at discharge showed no psychiatric abnormalities. The Board infers from this that the nervous trouble reported on the Report of Medical History was acute and transitory. A psychiatric disability, including psychosis, was not found within one year of separation from service; rather, the evidence reflects that the disability was not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not a psychiatric disability, weighs against the credibility of any statements that his disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The claims file contains primary care treatment records dating back to 1998 without mention of any psychiatric symptomatology in the earliest records. Because he underwent general psychosocial assessments throughout those years but made no pertinent complaints, it is reasonable to conclude that a psychiatric disability was not present. Id.; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The medical opinion evidence is also persuasive. The July 2019 and October 2020 VA examiner determined that the Veteran does not have PTSD and that his psychiatric disabilities are neither attributable to service, nor caused or aggravated by a service-connected disability. She based her conclusions on an examination of the claims file, including STRs, post-service treatment records, and diagnostic testing. She reviewed the reported history and provided a rationale for the conclusions reached. In contrast, the opinions of the Veteran’s wife and Dr. H. are of no persuasive value. In both reports, the PTSD diagnosis is based on a stressor lacking credible supporting evidence, as required under 38 C.F.R. § 3.304(f). A medical opinion based upon a nonverified and noncredible stressor carries no persuasive value. To the extent Dr. H. attributed the Veteran’s psychiatric disabilities to his service-connected medical problems, she did not identify the medical conditions or provide any rationale or explanation for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Her opinion on the matter of secondary service connection is thus also of no persuasive value. The only other evidence to the contrary of the July 2019 VA examiner’s opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as bipolar disorder. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). As a final matter, the record indicates that the Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. However, the presumptions referable to Persian Gulf veterans are inapplicable to the claimed psychiatric disability as it is not an “undiagnosed illness” or a “medically unexplained chronic multi-symptom illness.” Rather, his disability is diagnosed and the July 2019 and October 2020 VA examination reports indicate it is of at least a partially understood etiology and pathophysiology. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND 1. Service connection for joint and muscle pain, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. In March 2019, the Board remanded the claim for further development. The Board discussed that while an October 2013 VA examiner opined that the Veteran does not have an undiagnosed illness or a medically unexplained chronic multisystem illness, more recent VA treatment records showed a diagnosis of chronic pain syndrome. The Board found that a VA examination should be provided. In the pertinent remand directive, the Board asked the examiner to “indicate whether the Veteran's complaints of joint and muscle pain are due to a known clinical diagnosis or whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness.” While a VA examination was provided in July 2019, the Board cannot find that the report substantially complies with the underlying remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Specifically, the examiner neither identified a known clinical diagnosis, nor responded to the Board’s inquiry as to whether the Veteran’s joint and muscle pain, including chronic pain syndrome, constitutes an undiagnosed illness or a medically unexplained chronic multisymptom illness. Rather, the examiner listed various symptoms and addressed the matter of direct service connection based on in-service environmental exposures. As for chronic pain syndrome, he supplied a definition of the term and noted pain that arose after a post-service motor vehicle accident, but failed to discuss the Veteran’s chronic pain syndrome in the context of 38 C.F.R. § 3.317 or in relation to the multiple service treatment records documenting various joint pain. As such, a further opinion must be obtained. 2. A TDIU prior to September 23, 2014 is remanded. Because a decision on the claim for service connection for a joint and muscle disaiblity could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: Schedule the Veteran for an examination to address the nature and etiology of his joint and muscle pain, including chronic pain syndrome. The examiner must review the entire claims file, including a copy of this remand. The examiner is asked to provide responses to the questions below. There are several potential questions. This is because the Board requires an opinion addressing the regulation pertaining to Persian Gulf veterans (38 C.F.R. § 3.317). Please respond to all applicable questions and provide a rationale for any opinion expressed. (A.) Undiagnosed Illness (for Persian Gulf veterans) (1.) Identify the Veteran’s objective indications of a disability. • “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (2.) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? • If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (3.) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? • The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (4.) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, proceed to the next question. (B.) Medically Unexplained Chronic Multisymptom Illness (for Persian Gulf veterans) The determinations below must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. (1.) Is the etiology of the Veteran’s joint and muscle pain, including chronic pain syndrome, (a) inconclusive, (b) partially understood, or (c) fully understood? (2.) Is the pathophysiology of the Veteran’s joint and muscle pain, including chronic pain syndrome, (a) inconclusive, (b) partially understood, or (c) fully understood? (3.) If both the etiology and pathophysiology are partially understood or fully understood, proceed to the next question. (C.) Direct Service Connection Opine on whether it is at least as likely as not that the Veteran’s joint and muscle pain, including chronic pain syndrome, began during active service or is related to an in-service injury, event, or disease. In doing so, consider the following: • Service treatment records documenting various joint pain: back pain (Apr. 1989, Dec. 1992), left foot pain (undated), right knee pain (undated), right ankle pain (Feb. 1991) (Continued on the next page)   • May 1993 Report of Medical History on separation documenting the Veteran’s report of swollen or painful joints, and the examiner’s notation of painful sacroiliac joints M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.