Citation Nr: 21011935 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-25 706 DATE: March 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD. 2. The preponderance of the evidence is against a finding that the Veteran has a currently diagnosed acquired psychiatric disorder other than PTSD that was caused by or incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310. 4.125 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1990 to September 1992, with additional service in the National Guard. This case comes on appeal of an October 2013 rating decision. This matter was previously before the Board in May 2020, at which time the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder to afford the Veteran a new examination under the criteria of the DSM-5. At the time of that decision, the Board noted that there was evidence that the Veteran had service in the United States Army from January 1996 to May 1996, however, there were no service treatment records available for that period of service. The Veteran had been notified of this fact. Moreover, the Veteran’s contention is that his disability is causally related to his period of service with the United States Navy. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). As it pertains specifically to PTSD, service connection requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and, (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran contends that he has a diagnosis of PTSD related to three in-service incidents. In the first incident, the Veteran claims that while refueling at sea, he was almost hit in the head by a rigging that broke. The Veteran has stated that the rigging came close enough to his head that he could feel the wind it created. In the second incident, the Veteran reported that he was working in a control tower when a helicopter blade came very close to the tower, however, the helicopter did not crash. The third incident was when the Veteran was not allowed leave to attend the funeral of his favorite uncle. Service treatment records do not document any complaints or treatment of mental health conditions. Indeed, on the report of medical history for his separation examination, the Veteran checked “No” to depression or excessive worry, or to nervous trouble of any sort. However, service treatment records do show that the Veteran was referred for a substance abuse consultation in March 1992 after being arrested for driving under the influence of alcohol. The Veteran’s separation examination noted a condition of alcohol dependence. Post-service VA treatment records show that in April 2012, the Veteran had a positive PTSD screen. On follow-up evaluation, however, the Veteran was found not to have a PTSD diagnosis. At the same time, the Veteran was found to have mild depression that would come and go. A depression screen later that month was suggestive of mild depression, and the Veteran’s medical problem list included depressive disorder following that screening. In September 2013, the Veteran underwent a VA examination for PTSD and other mental disorders. At that time, the examiner reported that the Veteran did not meet the diagnostic criteria for PTSD, nor did he have any other mental disorder that conformed with DSM-IV criteria. The examiner reported that, based on the Veteran’s descriptions of his reported stressors, the Veteran did not have exposure to a traumatic event. Moreover, the traumatic event was not persistently reexperienced, there was no persistent avoidance of stimuli associated with the trauma, and there were no persistent symptoms of increased arousal. In an April 2015 mental health treatment note, the treating psychologist, Dr. K.A.P., diagnosed depression, amphetamine dependence, and alcohol dependence. In May 2015, VA treatment records show the Veteran was evaluated through a substance use disorder (SUD) consultation. There, the evaluating psychiatrist reported that the Veteran was subject to alcohol use disorder and methamphetamine use disorder. The Veteran also had a history of cocaine use disorder. A screening for PTSD did not find clear Criteria A events. A screening for mania found only periods of stimulation from use of cocaine and methamphetamine. A screening for depressive symptoms found reports of “stress” that were related to the Veteran’s described conspiracies by people to deceive or defraud him. There were also periods of depressed mood and low activity related to cocaine or methamphetamine post-use crashes. In January 2016, the Veteran’s psychologist, Dr. K.A.P. assessed the Veteran’s condition as amphetamine and alcohol dependence, without any diagnosis of depression. In a February 2016 SUD treatment note, the evaluating psychiatrist once again identified methamphetamine use disorder, though alcohol use disorder was reportedly in remission. The provider also questioned intermittent explosive disorder or paranoid personality disorder, but no actual diagnosis of either condition appears in the record. Subsequent screenings of record for both PTSD and depression have been negative. In the Board’s May 2020 remand, the Board noted that VA had updated the criteria of 38 C.F.R. § 4.125(a) to require that mental health diagnoses be made in conformance with criteria of the DSM-5, rather than the DSM-IV. Accordingly, the Board remanded the Veteran’s claim to afford the Veteran an examination under DSM-5 criteria. In December 2020, the Veteran underwent a new VA examination. At that time, the examiner reported that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. Instead, the Veteran had a diagnosis of amphetamine use disorder, severe, and that this was the Veteran’s only diagnosed disorder. The examiner noted that the Veteran’s reported stressors—as described above—were not adequate to support the diagnosis of PTSD. The examiner found that the Veteran did not have a current diagnosis of depression, but did observe that the Veteran’s symptoms of depressed mood were attributable to the amphetamine use disorder. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran has a current acquired psychiatric disorder that was caused by or incurred in service. First, addressing PTSD, the evidence does not support a current diagnosis. Although the Veteran has insisted that he has a diagnosis of PTSD related to his in-service stressors, VA regulations clearly require medical evidence diagnosing the condition. The Veteran, as a layperson, is not competent to make such a diagnosis. Although the record does show one positive PTSD screen in April 2012, follow-up evaluation did not produce a PTSD diagnosis. All psychiatric evaluations since that time, to include two separate VA examinations, have failed to find a diagnosis of PTSD under either DSM-IV or DSM-5 criteria. Thus, there is no evidence to support a diagnosis of PTSD. In the absence of a diagnosed condition, the claim fails to meet the first requirement for service connection. Regarding any other acquired psychiatric disorder, the evidence suggests that the Veteran’s symptoms are attributable to amphetamine use disorder rather than depressive disorder. Although the Veteran did have a diagnosis of mild depression in April 2012, a diagnosis of depressive disorder has not been consistently supported by mental health evaluations. Indeed, though the Veteran’s VA psychologist, Dr. K.A.P. initially assessed the Veteran with depression, Dr. K.A.P.’s subsequent evaluation found only amphetamine and alcohol use disorders. The Veteran’s SUD psychiatrist attributed the Veteran’s depression symptoms to cocaine and methamphetamine post-use “crashes.” Similarly, the December 2020 VA examiner attributed the Veteran’s depression symptoms to amphetamine use disorder. VA law precludes compensation for primary alcohol and drug abuse disabilities, for secondary disabilities that result from primary alcohol and drug abuse, and for disabilities due to willful misconduct. See VAOPGCPREC 7-99, 64 Fed. Reg. 52375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31263 (1998). Therefore, to the extent that the Veteran’s substance abuse began with alcohol use disorder—which was first documented during service—service connection is not warranted for that disorder. Furthermore, even if the Board were to concede a diagnosis of depression during the pendency of the claim based on the isolated diagnoses noted above, the preponderance of the evidence is against a finding that such was caused by or incurred in service. Service treatment records are silent for any complaints or treatment related to depression, and the Veteran denied any symptoms on his separation examination. Thus, there is no evidence of an in-service onset. Moreover, there is no evidence to support a finding that depression was related to an in-service injury or event. Accordingly, the preponderance of the evidence is against a finding that a current psychiatric disorder, to include PTSD, was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.