Citation Nr: 21012253 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-34 222A DATE: March 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depression, anxiety, and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence does not demonstrate that the Veteran’s acquired psychiatric disorder was either proximately due to aggravated beyond its normal progression by his service-connected disabilities, or was not otherwise etiologically related to service. The Veteran has not been diagnosed with PTSD. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2011 and February 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in November 2016, March 2018, and January 2020 for further development. The Veteran testified at a videoconference hearing before the undersigned in January 2018. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depression, anxiety, and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases a presumption of service connection arises if the disease is manifested to a compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic disabilities, 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). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a disability was “noted” during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for PTSD requires medical evidence diagnosing the condition; 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. 38 C.F.R. § 3.304 (f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-5). See 38 C.F.R. § 3.304 (f). As an initial matter, during the course of the appeal the regulations pertaining to psychiatric disorders were amended. See 79 Fed. Reg. 45,093 (Aug. 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the DSM-V, as opposed to the DSM-IV. Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran’s claim was not certified to or pending before the Board on August 4, 2014, the Veteran’s PTSD diagnosis must be based on the criteria in the DSM-5. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448 – 49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran contends that his acquired psychiatric disability was either due to his military service or secondary to his service-connected disabilities. Service treatment records do not show a diagnosis of, treatment for, or a complaint of a psychiatric problem. While the October 1972 enlistment examination noted that the Veteran was “mentally disqualified (trainability limited)” and an October 1974 record noted that the Veteran appeared to be “on” something as he was acting very strange (i.e., yelling at other patients and fully asleep), neither specifies a psychiatric disorder. Military personnel records show that since reporting in Japan, his performance and conducted and “deteriorated” as evidenced by nonjudicial punishments and substandard proficiency and conduct marks. They also show that he was promoted to Lance Corporal (E-3) in May 1974, but was demoted to Private First Class in September 1974 and then Private in June 1975. In an October 2011 lay statement, the Veteran reported that his pseudofolliculitis barbae caused him to grow a full beard, which started a series of constant harassment, mocking, verbal abuse, stigmatization, and numerous Articles 15’s. He also reported that his Trinidadian accent resulted in his commanding officers constantly harassing, mocking, laughing, and stigmatizing him. He asserted that these experienced caused his manic depression and anxiety. The Veteran stated that military personnel records would show that he had been court-martialed and had his rank reduced several times. In an October 2011 VA examination, the examiner found that the Veteran did not have a diagnosis of PTSD that conformed with the DSM-IV criteria, but diagnosed him with personality disorder with antisocial and paranoid personality traits. The Veteran reported that he joined the Marine Corps because he wanted to fight and “establish himself as a member of the American society.” During service, he stayed away from people due to his perception of how he was treated. Specifically, he felt mocked, like an outsider, and as if he did not belong. He reported that other members of the military mocked him regarding his culture, ethnicity, and race. It was noted that the Veteran received fifteen offenses/punishments while in service. He sought mental health treatment in 2010 – approximately 33 years after discharge from service. He reported that he blamed himself for a long time for thinking that people were out to get him or would harm him. The examiner opined that it was less likely than not that the Veteran’s psychiatric disability was due to his service due to the fact that the Veteran did not seek mental health treatment until approximately 33 years after discharge from service. In a July 2013 VA examination, the examiner diagnosed the Veteran with depressive disorder. It was noted that he had a history of verbal and physical abuse in his childhood. The Veteran reported that serving in Japan “drastically changed his existence.” This change was due to not being accepted in the Marine Corps. He was mistreated by the other Marines, to include being ridiculed, pranked, laughed at, and called names. He was lied about and charged with multiple minor offenses, such as chewing gum on post, not shaving well enough, being late, etc. He was eventually discharged under honorable conditions for the benefit of the government. He had had 27 jobs since discharge from service, mostly due to “performance and attitude.” He currently worked the night shift for Loyola University, which he disliked, but found that he was “better off being away from people.” The examiner opined that it was less likely than not that the Veteran’s major depression/anxiety was proximately due to his service-connected disabilities based on insufficient supporting evidence. He noted the Veteran clarified at the examination that he believed that the cause of his mental health problems was the mistreatment he received while serving in Japan. In an October 2014 VA 9, the Veteran claimed that his disabilities had worsened. In an October 2014 VA examination, the examiner diagnosed the Veteran with persistent depressive disorder. He reported that he joined the Marine Corps to “demonstrate his commitment to being a U.S. citizen and to ‘earn [his] keep in this country.” He also reported that while Trinidad was “neutral” with regard to race and social status, the U.S. was in a time of significant racial tension. He performed well in boot camp and denied any racism or discrimination in boot camp. The Veteran stated that at Camp Pendleton, he could “g[e]t away” with not shaving daily, but guard duty in Japan required a significantly higher standard of personal appearance and grooming. He was unable to shave due to a medical condition, which caused him to be removed from guard detail and made “effectively useless” to the installation. As a result, he was reportedly ridiculed and stigmatized, which included racial epithets. This was worsened by the Veteran’s retorts and eventual complaints to command. He was consistently written up for several minor infractions for which his peers were not punished and was eventually removed from the military. The examiner noted that the Veteran became tearful when describing his fear of rejection and ridicule. The Veteran was noted to appear to be an adequate historian and that his report was generally consistent with service records. The examiner found that while it was within the realm of possibility that the Veteran’s maladjustment during service may have contributed to the progression of symptoms or interpersonal development, there was insufficient evidence to conclude that the Veteran’s military experience caused his current distress. The examiner further found that the Veteran’s current distress was characterized, in part, by ruminations of his difficulty “fitting in” not only in the military, but also in his subsequent encounters as a civilian over the past three decades. As such, the examiner found that it was less likely than not that the Veteran’s current symptoms of depressed mood and chronic social maladjustment were the result of his in-service military harassment. In the March 2015 VA 9, the Veteran disagreed with the VA examination opinion and contended that the examiner had bias. He reiterated that he had been an outstanding Marine for the first 18 months of service and that it went “downhill” when he was stationed in Japan. He reported that it seemed as though he was no longer appreciated and was bombarded with all manner of harassment. In a January 2017 VA examination, the examiner diagnosed the Veteran with persistent depressive disorder. She found that upon interview data and document review, there was no indication that the Veteran’s depression was related to his service-connected disabilities. At the January 2018 hearing, the Veteran reported that he was taking medication for his depression. He asserted that his depression and other psychiatric symptoms were due to his service-connected disabilities, worry and confusion about a recommended wrist operation, and worries about his inability to perform duties and work. In an April 2019 VA medical opinion, the examiner noted that the Veteran had been diagnosed with persistent depressive disorder at the 2017 VA examination. The examiner noted the findings of the four previous VA examiners and found that they, in sum, all opined that the Veteran’s military service or service-connected disabilities did not contribute to his current diagnosis. The examiner further found that that there had been no new evidence since the last examination in 2017. Therefore, based on review of all examinations and evidence of record, it was less likely than not that the Veteran’s acquired psychiatric disorder was proximately due to, or the result of, his service-connected disabilities. Additionally, it was less likely as not that his acquired psychiatric disorder was aggravated by his service-connected disabilities. In an April 2020 VA medical opinion, the examiner opined that he concurred with the findings of the April 2019 VA opinion and previous examinations in that it was less likely than not that the Veteran’s depression was due to his service-connected disabilities. Instead, the examiners linked the Veteran’s depression to interpersonal problems. The April 2020 examiner also opined that it was less likely than not that the Veteran’s depression was permanently aggravated beyond its natural progression by his service-connected disabilities. Post-service treatment records showed that his depressive symptoms had been stable for many years with the use of medication. For example, he did not have a history of suicide attempts or psychiatric hospitalizations and he had had steady employment at the same job since 2006. Post-service VA treatment records show that the Veteran reported depression and anxiety and was diagnosed with depression, major depressive disorder, anxiety, and personality disorder. He was assessed with stable PTSD by a primary care physician in September 2013. The Veteran reported that he had been depressed and had interpersonal issues since his service. He stated that he experienced constant harassment, racism, and stigmatization while serving in Japan, and was mocked and ridiculed for being black and Trinidadian with a strong accent. As a result, he had many verbal and physical altercations which, in turn, resulted in many Article 15’s. Post-service private treatment records show that the Veteran was diagnosed with major depression and anxiety disorder. In August 2010, it was noted that he had a diagnosis of PTSD and a computerized problem list indicated PTSD. In September 2010, the Veteran reported being mistreated while he was in the Marine Corps. He joined the Marines immediately after immigrating to feel more American, but was subjected to racial harassment, called names, talked down to, and unduly scrutinized due to his race. He also reported having been sexually targeted by his male neighbor during his childhood. He denied posttraumatic reactions to these incidents. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding that service connection for an acquired psychiatric disorder is warranted. The record shows that the Veteran has a current diagnosis for major depressive disorder, persistent depressive disorder, depression, anxiety, and personality disorder. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the September 2013 VA treatment record and the August 2010 private treatment indicate that the Veteran has PTSD, it does not appear that either medical professional applied the full diagnostic criteria for PTSD as outlined in the DSM-5. 38 C.F.R. § 4.125. Conversely, none of the VA examiners found that the Veteran had PTSD, the October 2011 VA examiner expressly found that the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-IV, and the October 2014 VA examiner found the only mental disorder that the Veteran had that confirmed to the DSM-5 criteria was persistent depressive disorder. There is no evidence that the VA examiners were either not competent or credible. Further, the diagnoses were based on the correct DSM-5 criteria, the examiner specifically discussed the diagnostic criteria, and the examiner considered both the Veteran’s medical history and his lay statements in rendering his diagnoses. As such, the Board finds that the VA examination reports are entitled to significant probative weight as to the presence of PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the preponderance of the evidence is against finding that the Veteran has a current diagnosis of PTSD in conformity with the DSM-5. The Board notes that the Veteran has reported that his acquired psychiatric disorder began during active duty service and was due to in-service stressors, specifically harassment, racism, stigmatization, ridicule, and mistreatment he experienced when stationed in Japan during active duty service. However, these statements are outweighed by contemporaneous service treatment records which do not show complaints of, treatment for, or a diagnosis of an acquired psychiatric disorder. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). While an October 1974 record noted that the Veteran appeared to be “on something” as he was acting strange, neither a psychiatric diagnosis nor mental health treatment was indicated. The Board finds that the October 2011 and October 2014 VA examiners’ opinions are the most probative evidence as to whether the Veteran’s acquired psychiatric disorder was due to his military service. The examiners possessed the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The VA examiners based their opinions upon in-person clinical interview, the Veteran’s lay statements, and review of the evidence of record. Accordingly, the Board concludes that the October 2011 and October 2014 VA examination opinions that the Veteran’s currently diagnosed acquired psychiatric disorder was less likely than not related to his active duty service has the most probative value. Further, these opinions are consistent with the other medical evidence in the claims file. Additionally, secondary service connection is not established with regards to the Veteran’s acquired psychiatric disorder. While the Veteran has claimed that his acquired psychiatric disorder is secondary to his service-connected disabilities, the July 2013, January 2017, April 2019, and April 2020 VA examiners opined that it was less likely than not that the Veteran’s acquired psychiatric disorder was caused or aggravated by his service-connected disabilities. The Board finds that these opinions are the most probative evidence as to whether the Veteran’s acquired psychiatric disorder was secondary to his service-connected disabilities. The examiners possessed the necessary education, training, and expertise to provide the requested opinion. Grottveit, 5 Vet. App. at 93. The VA examiners based their opinions upon in-person clinical interview, the Veteran’s lay statements, and review of the evidence of record. Accordingly, the Board concludes that the July 2013, January 2017, April 2019, and April 2020 VA examination opinions that the Veteran’s currently diagnosed acquired psychiatric disorder was less likely than not related to his active duty service has the most probative value. Further, these opinions are consistent with the other medical evidence in the claims file. The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Significantly, the Board notes that neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection on a direct or secondary basis. The Board has also considered the Veteran’s lay statements. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of an acquired psychiatric disorder, he is not competent to opine as to the etiology of the disability. He has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay statements that the Veteran’s currently diagnosed acquired psychiatric disorder was related to his service or his service-connected disabilities do not constitute competent medical evidence and lack probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for an acquired psychiatric disorder. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, Associate 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.