Citation Nr: 21010181 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-00 471 DATE: February 24, 2021 ORDER Service connection for an acquired psychiatric disability, to include other specified trauma- and stressor-related disorder and stimulant use disorder in sustained remission, is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran’s acquired psychiatric disorder, to include other specified trauma- and stressor-related disorder, clearly and unmistakably existed prior to his entrance into military service, and was clearly and unmistakably not aggravated beyond its natural progression during service. 2. The competent and probative evidence shows that the Veteran’s stimulant use disorder in full remission had its onset years after discharge from service and is not otherwise related to service. 3. The competent and probative evidence of record does not reveal a diagnosis of PTSD at any time during or proximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include other specified trauma- and stressor-related disorder and stimulant use disorder in sustained remission, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to April 1986, and from October 1988 to April 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020 the Veteran testified before the undersigned at a Travel Board hearing at the Portland, Oregon VARO and a transcript of that proceeding is of record. The Board previously considered this matter in June 2020, when it remanded the appeal for additional development. The Board sought additional records to build a more complete picture of the Veteran’s medical history. The Veteran authorized VA to seek records from Redwood Gospel Mission in California. VA sent two letters in August and September 2020, but did not get a response. VA also sought records from Columbia River Correctional Institute. A response was not received. VA provided the Veteran notice of these attempts. VA also obtained a psychiatric examination and opinion. It has now returned to the Board for appellate review and the Board finds substantial compliance with its prior directives based on the foregoing actions. 1. Service connection for an acquired psychiatric disability, to include other specified trauma- and stressor-related disorder and stimulant use disorder in sustained remission, is denied. The Veteran seeks service connection for an acquired psychiatric disability, to include other specified trauma- and stressor-related disorder and stimulant use disorder in sustained remission. 03/19/2003 VA 22-526, Veteran’s Application for Compensation or Pension. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). It is not in dispute that the Veteran has a current diagnosis of an acquired psychiatric disorder, to include other specified trauma- and stressor-related disorder and stimulant use disorder in sustained remission, which is confirmed by the VA examination in October 2020. See 10/26/2020 C&P Exam. However, the question before the Board is whether the Veteran’s acquired psychiatric disorder was initially manifested during service from December 1985 to April 1986 and from October 1988 to April 1990, or if the undebatably disorder pre-existed service and was undebatably not aggravated by service. For the reasons outlined below, the Board finds that the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder pre-existed service. Turning to the evidence, a psychiatric disorder was not noted at the time of the Veteran's entrance examinations in August 1985 and August 1988. See 06/11/2013 STR – Medical, at 3-7. Therefore, the presumption of soundness attaches, and the Veteran is presumed sound at entrance with respect to a psychiatric disorder. 38 U.S.C. § 1111. Nonetheless, the presumption of soundness may be rebutted by evidence that clearly and unmistakably demonstrates that an acquired psychiatric disorder both pre-existed service and was not aggravated by such service. Both of these elements must be satisfied to rebut the presumption of soundness, and the burden of proof is on VA to show that these elements exist. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In this regard, VA may show a lack of aggravation by establishing that there was no increase in disability during active service; or may show that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1196. To qualify as "clear and unmistakable," evidence "cannot be misinterpreted and misunderstood, i.e., it [must be] undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). Here, there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder, now diagnosed as other specified trauma- and stressor-related disorder, existed prior to his entrance in service. In this regard, the Veteran testified that he first received psychiatric treatment as a child for hyperactivity. 03/03/2020 Hearing Transcript, at 2. A February 1988 Applicant Medical Prescreening Form contains the Veteran’s self-reports of being prescribed Ritalin to treat hyperactivity at age 12 and hospitalization at age 13 for “emotional distress” and “emotional testing.” 06/11/2013 STR – Medical at 17. Further, the Veteran’s service treatment records (STRs) document an involuntary hospital admission in May 1980 (at the age of 14) for self-protection. See 06/11/2013 STR – Medical at 12. The evidence shows the Veteran was subject to a 90 day involuntary psychiatric treatment order. At discharge, he was diagnosed with generalized anxiety disorder, oppositional disorder, mild psychosocial stress, and poor adaptive functioning. Id. at 16. The Veteran’s military personnel records also contain an October 1989 Report of Mental Status Evaluation. 06/11/2013 Military Personnel Record, at 5. Upon examination, the Veteran reported problems with anger and impulse control, and was diagnosed with immature personality characteristics. See id. The evidence of record shows that after discharge from military service, the Veteran sought treatment for an acquired psychiatric disorder in January 2013 at Lifeworks NW. See 03/28/2013 Medical Treatment Record – Non-Government Facility. The Veteran was diagnosed with anxiety disorder and past cocaine abuse. Id. at 20. Upon examination, the Veteran reported a history of trauma exposure that included: sexual abuse at age 8; living in juvenile detention for a year; living in a group home for three years, where he suffered mental, physical, and sexual abuse; incarceration in prison for 33 months then for 18 months for drug and sexual assault charges; and experiencing the suicide of his girlfriend’s 13 year old daughter. See id. at 17-18. The Veteran first attended a VA mental health examination in March 2013, where he was diagnosed with mood disorder NOS and cocaine dependence, two year sustained remission. 04/05/2013 VA Examination. The Veteran denied a history of combat or other military trauma and denied any history of psychiatric care. An addendum medical opinion was obtained in April 2013, where the examiner noted that the Veteran presented with low-grade depression and mild anxiety, and opined that his current mood symptoms were “certainly precipitated” by his history of childhood abuse, and that his past cocaine dependence “certainly contributed to functional limitations over the years, and may be considered diagnostic of underlying mood symptoms.” See id. at 20. The examiner further opined that the Veteran’s acquired psychiatric disorder was less likely than not incurred in or caused by service, and that the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by service. See 03/26/2013 VA Examination at 3-4. Thereafter, the Veteran was afforded a VA PTSD examination in November 2015. 11/17/2015 C&P Exam. The examiner made diagnoses of adjustment disorder with depression and anxiety, cocaine use disorder in full sustained remission, and other specified trauma- and stress-related disorder. The Veteran also reported stressors of being subjected to verbal bullying and harassment by a Sergeant during service, and being sexually abused as a child and assaulted while in a group home. The examiner did not make a diagnosis of PTSD; instead, the examiner reported that the Veteran presented with some PTSD-related symptoms for which he was diagnosed with other specified trauma- and stressor-related disorder secondary to childhood abuse. The examiner reported that the Veteran’s reported stressor of in-service bullying and harassment did not qualify as a criterion A stressor, and that “none of his current diagnoses can be linked to this stressor on an ‘as likely as not’ basis.” Id. at 7. Lastly, the examiner opined that the Veteran’s adjustment disorder is secondary to his current legal status and is unrelated to his military service. Finally, in October 2020, the Veteran was afforded another VA PTSD examination. 10/26/2020 C&P Exam. The examiner diagnosed the Veteran with other specified trauma- and stressor-related disorder and stimulant use disorder (cocaine) in sustained remission. The Veteran reported symptoms of intrusive thoughts about childhood trauma, mild psychological reactivity to and avoidance of those thoughts, which the examiner attributed to the diagnosis of other specified trauma- and stressor-related disorder. Regarding stimulant use disorder (cocaine) in sustained remission, the Veteran reported no current, active symptoms related to this diagnosis. The October 2020 examiner opined that the Veteran’s other specified trauma- and stressor-related disorder indubitably existed prior to service, and reasoned that the records from the Veteran’s 1980 psychiatric hospitalization document the presence of anxiety and oppositional behaviors consistent with the diagnosed other specified trauma- and stressor-related disorder. See id. at 5. The examiner opined that the Veteran’s current symptoms were related to his experiences of sexual and physical trauma prior to military service. The examiner further reasoned that medical records from prior to military service document the presence of symptoms consistent with childhood trauma. Id. at 3. Regarding the in-service diagnosis of “immature personality characteristics,” the examiner reported that there was no evidence that the symptoms of anger and impulse control issues were different in any way from the Veteran’s pre-service symptomatology. Id. After a careful review of the competent and probative medical and lay evidence of record, the Board finds that the evidence shows that the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service. In this regard, the March 2013, November 2015, and October 2020 VA examiners all opined that the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service. These examiner all have training and experience in evaluating mental health disorders a psychologists. Further, the record contains medical records that reveal that the Veteran was diagnosed with and received treatment for an acquired psychiatric disorder, to include a 1980 psychiatric hospitalization, prior to service. 06/11/2013 STR – Medical at 12. The Board finds that the totality of this evidence undebatably shows that the Veteran’s psychiatric disorder pre-existed service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner, 370 F.3d at 1096. This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn, 25 Vet. App. 231, 236-37 (2012). The Board acknowledges that during service the Veteran underwent a Mental Status Evaluation and was assessed with immature personality characteristics. However, the Board finds that the October 2020 examiner competently opined that this assessment was consistent with the Veteran’s pre-service psychiatric symptomatology, and not a new diagnosis or an aggravation of a disorder that existed prior to service. This examiner added that the record supports that the Veteran's symptomatology/behavior was consistent from the time prior to the military, to his time in the military, and in the years following the military. Moreover, some of his symptoms have moderated over time, e.g., impulsivity and misconduct. The October 2020 examiner further opined that the evidence failed to show that any mental health symptoms which were present prior to the military were aggravated by experiences in the military, to include the reported in-service stressor or “counseling during service.” Id. The examiner opined that instead, the record supports that the Veteran’s symptomatology was consistent from the time prior to the military, to his time in the military, and in the years following military discharge, and moreover, some of his symptoms have moderated over time, e.g., impulsivity and misconduct. Based on the available military and medical records and the Veteran’s report in the accompanying exam, the examiner concluded the diagnosed other specified trauma- and stressor-related disorder was not aggravated beyond its natural progression by in-service injury, event, or illness. See Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners and that medical reports “must be read as a whole”). Further, the March 2013 examiner likewise opined that that the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by service. See 03/26/2013 VA Examination at 3-4. The Board finds the VA examiners’ opinions to be highly probative, as they were made by medical professionals who examined the Veteran and show adequate consideration of the relevant evidence. For example, the 2020 VA examiner show consideration of mental health history prior to, during, and after service. It also showed consideration of the Veteran’s in-service harassment by Sgt. Pitter. Further, there is no medical opinion or competent and credible evidence that conflicts with the VA medical opinions of record. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the Veteran’s disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran's acquired psychiatric disorder, to include other specified trauma- and stressor-related disorder pre-existed service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); see also Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (stating that if the Secretary rebuts the presumption, the second element of service connection has not been established, and service connection is unwarranted). The Board has considered the Veteran's statements, to include his assertions that his acquired psychiatric disorder, to include other specified trauma- and stressor-related disorder, was caused by his active duty service. See 03/03/2020 Hearing Transcript. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., feeling anxiety; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex mental health issues. Thus, his lay assertions do not constitute competent evidence upon which service connection can be granted and they lack weight. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. The Board acknowledges the evidence that the Veteran’s diagnosis of stimulant use disorder in sustained remission had its onset after military service, and the presumption of soundness is therefore inapplicable. However, the Board finds that the preponderance of the evidence fails to establish a link between the Veteran’s stimulant use disorder and his military service. In this regard, the Board finds that the October 2020 examiner competently opined that it was less likely than not that the Veteran’s stimulant use disorder (cocaine) in sustained remission was related to service. See 10/26/2020 C&P Exam at 2. The Board finds that the examiner’s opinion is supported by an adequate rationale; namely, that there was no evidence to support a link between stimulant use disorder (cocaine) in sustained remission and service, and that the Veteran reported that his problematic use of cocaine began several years after discharge from the military. See id. The October 2020 examiner’s opinion thus shows adequate consideration of the relevant medical and lay evidence of record, to include the Veteran’s self-reports, and is entitled to substantial probative weight. For the above reasons, service connection for an acquired psychiatric disorder, to include other specified trauma- and stressor-related disorder and stimulant use disorder in sustained remission, is denied. 2. Service connection for PTSD is denied. The Veteran contends that he is entitled to service connection for PTSD and that during service he was subjected to harassment and bullying by a Sergeant. See 04/23/2015 Hearing Testimony. Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Here, the Board finds that it cannot grant service connection for PTSD because the record does not contain probative, competent medical evidence of a current diagnosis of PTSD during or reasonable proximately to the appeal period. Private mental health treatment records from LifeWorks NW reveal that the Veteran reported a past diagnosis of PTSD. See 03/28/2013 Medical Treatment Record – Non-Government Facility. The records indicate that the Veteran presented with some PTSD symptoms, including trouble trusting others and intrusive thoughts, but these symptoms were attributed to the diagnosis anxiety disorder NOS. See id. at 18. In light of this, the Board does not find the LifeWorks NW treatment records to contain a probative, competent diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. §§ 3.304(f), 4.125(a). As psychological disorders are more complex, the Board finds that specialized training is needed to render a diagnosis. Here, as the Veteran has not been shown to have such specialized training or experience, his reports of a PTSD diagnosis contained within the private treatment records are not competent and lack weight. This is consistent with the applicable regulations. 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran first attended a VA mental health examination in March 2013, where he was diagnosed with mood disorder NOS and cocaine dependence, two year sustained remission. 04/05/2013 VA Examination. The Veteran denied a history of combat or other military trauma and denied any history of psychiatric care. The examiner noted that the Veteran presented with low-grade depression and mild anxiety, and opined that his mood symptoms were likely caused by childhood abuse and past cocaine dependence. Thereafter, the Veteran was afforded a VA PTSD examination in November 2015. 11/17/2015 C&P Exam. The examiner made diagnoses of adjustment disorder with depression and anxiety, cocaine use disorder in full sustained remission, and other specified trauma- and stress-related disorder. The Veteran reported stressors of being subjected to verbal bullying and harassment by a Sergeant during service, and being sexually abused as a child and assaulted while in a group home after service. The examiner did not make a diagnosis of PTSD after considering the PTSD diagnostic criteria (Criteria A-H) from the DSM-5; instead, the examiner reported that the Veteran presented with some PTSD-related symptoms for which he was diagnosed with other specified trauma- and stressor-related disorder secondary to childhood abuse. The examiner reported that the Veteran’s reported stressor of in-service bullying and harassment did not qualify as a criterion A stressor, and that “none of his current diagnoses can be linked to this stressor on an ‘as likely as not’ basis.” Id. at 7. Finally, the examiner opined that the Veteran’s adjustment disorder is secondary to his current legal status and is unrelated to his military service. Finally, in October 2020, the Veteran was afforded another VA PTSD examination. 10/26/2020 C&P Exam. The examiner considered the Veteran’s stressors and PTSD diagnostic criteria (Criteria A-H) from the DSM-5. The Veteran found that the Veteran did not meet Criteria D-I. Instead, the examiner diagnosed the Veteran with other specified trauma- and stressor-related disorder and stimulant use disorder (cocaine) in sustained remission. The Veteran reported symptoms of intrusive thoughts about childhood trauma, mild psychological reactivity to and avoidance of those thoughts, which the examiner attributed to the diagnosis of other specified trauma- and stressor-related disorder. Regarding stimulant use disorder (cocaine) in sustained remission, the Veteran reported no current, active symptoms related to this diagnosis. The October 2020 examiner specifically considered the Veteran’s reported in-service stressor of being subjected to bullying and harassment by a Sergeant, but concluded that the Veteran had no symptoms related to this stressor or another clinical diagnosis with regard to his experience in service. Here, the Board finds that the examination reports and medical opinions prepared by the March 2013, November 2015, and October 2020 VA examiners are based upon sufficient facts and data as applied to reliable principles and methods in the field of psychiatry, to include consideration of the appropriate DSM. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the March 2013, November 2015, and October 2020 VA examiners’ findings are entitled to substantial probative weight. The Board acknowledges the Veteran’s contentions that he has been diagnosed with PTSD, however he lacks the medical knowledge necessary to competently diagnose his mental health condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). So, statements in this regard are not competent and lack weight. As such, greater probative weight is given to the findings of the March 2013, November 2015, and October 2020 VA examiners. In sum, the Board finds the preponderance of the evidence does not show that the Veteran has had a competent diagnosis of PTSD for VA purposes at any point during the appeal period. A competent diagnosis of PTSD for VA purposes was not endorsed by the March 2013, November 2015, or October 2020 VA examiners, or indicated in any mental health treatment records. Thus, for the reasons discussed above, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, service connection is not warranted for PTSD. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.