Citation Nr: 21014270 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-26 231 DATE: March 11, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACTS There is no diagnosis of PTSD and no other mental disorder superimposed upon the Veteran’s personality disorder. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, including PTSD, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to November 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in August 2019 and delivered sworn testimony via video conference hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Duties to Notify and Assists The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The December 2019 remand directed the RO to attempt to obtain records from LSU related to a 2018 bilateral hearing examination. In July 2020 correspondence, the RO requested that the Veteran submit a VA Form 21-4142 from to grant authorization for his treatment records. In an August 2020 correspondence the Veteran stated he would try to retrieve the LSU records because there is a fee associated with the request. However, the Veteran did submit the requested form or records. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991). Therefore, because the Veteran was given ample notification to provide the requested authorization forms, the Board finds that substantial compliance has been completed. Accordingly, the Board will proceed with adjudication. 1. Entitlement to service connection for a psychiatric disorder, including PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders. 38 C.F.R. §§ 3.304 (f), 4.125(a). Lay evidence may establish an alleged stressor may where: 1) the stressor is related to the Veteran’s fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of the Veteran’s service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At the August 2019 Board hearing, the Veteran testified that he had been seen at the VA Shreveport Center two weeks prior to his hearing. Further, the Veteran testified that he is enrolled and has been attending in classes for PTSD for the over six years at a Vet Center near his home. Regarding PTSD, the Board finds that the evidence of record does not demonstrate a present disability. In VA examinations in June 2014 and November 2020, the examiners ultimately determined the Veteran did not have a diagnosis of PTSD. The June 2014 examiner opined that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD under DSM-5, rather the examiner concluded the Veteran had personality disorder with schizoid and passive aggressive traits. The examiner also explained while the Veteran does report some symptoms suggestive of post-traumatic stress disorder, as Dr. B. and others have indicated, he does not meet the full criteria for the diagnosis. Furthermore, during the interview the Veteran did not describe specific stressors involving fear of hostile military or terrorist activity. The November 2020 examiner opined there was no diagnosis of PTSD. The examiner conducted a thorough review of the evidence, noting the Veteran has been followed every 1-2 times a month at the Vet Center and it appears the Veteran is diagnosed with PTSD based on his self-report and does not have any standardized assessment of emotional and behavioral function. The examiner noted the Veteran tried to bring most of his answers to alleged PTSD, even when this response was not relevant to the question at hand. The examiner stated that there is evidence that the Veteran has repeatedly attempted to feign impairment for secondary gain, as noted in the current VA evaluation as well as in his available record. Additionally, the examiner noted the Veterans' responses on standardized assessment of emotional and behavioral function suggested a deliberate attempt to present as psychiatrically impaired. VA treatment records document that in December 2003 the Veteran presented for a psychology consult complaining of bad dreams. The licensed clinical psychologist noted rule out PTSD, generalized anxiety disorder, and dysthymic disorder. In a January 2004 VA record, the assessment included dysthymic disorder, generalized anxiety disorder, and personality disorder. It was noted that there were signs and symptoms of PTSD, but that the stressor had to be verified. A subsequent March 2004 VA treatment record notes the Veteran was seen for a follow-up appointment; the psychiatrist noted PTSD type nightmares by history only when the Veteran talks of Vietnam, a sub threshold for diagnosis. A March 2008 VA record assessed anxiety disorder. In an April 2008 VA psychology note, the examiner stated that the Veteran did not meet the full criteria for PTSD. An anxiety disorder was noted. Vet Center counseling records list the Veteran presented for treatment for PTSD based on a self-referral. A February 2015 Vet Center record documents the Veteran reported recurrent nightmares, replaying wartime events, edgy and irritable and requested counseling services. A February 2017 intake assessment documents a counselor noted the Veteran presented with PTSD symptoms, hypervigilance, avoidance behavior, displaced anger, and nightmares. A September 2019 Vet Center record documents the pyscho-social focus as PTSD. The counseling records appear to be based on positive PTSD screenings or reports from the Veteran and do not appear to correspond to a formal diagnosis, to include the assessment of diagnostic criteria such as in DSM-IV or DSM-V. A positive PTSD screening is not the equivalent of a diagnosis. Instead, a positive PTSD screening indicates the need for further evaluation in order to determine if a diagnosis is warranted. The Board assigns significant probative value to the 2014 and 2020 VA examinations as they are based upon review of the relevant evidence and have underlying explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Thus, the probative evidence indicates there is no PTSD diagnosis. Regarding psychiatric disorders other than PTSD, the Board finds that service connection is not warranted. As indicated by the 2014 and 2020 VA examinations, the other diagnosis of record during the appeal period was a personality disorder. In general, personality disorders are not eligible for service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Service connection may be granted, however for any mental disorder that is superimposed upon the personality disorder. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The June 2014 examiner diagnosed paranoid personality disorder with schizoid and passive aggressive traits. The examiner explained the Veteran shows a clear history of personality disorder and appears that his previous entries into treatment were motivated in part by seeking compensation. The examiner also explained, the Veteran’s personality disorder is consistent with the types of problems that were described while he was in the military, but this is a characterological / developmental condition unrelated to his military service itself, and there are signs of pre-military maladjustment consistent with longstanding personality disorder. The November 2020 examiner diagnosed personality disorder unspecified, explaining the Veteran’s description of his court martial indicated clear paranoid persecutory ideas. The examiner opined this condition was less likely than not incurred in or caused by military service. The examiner explained there is evidence that the Veteran’s personality disorder diagnosis is the result of his pre-military history. Further, there is no suggestion of military service causing undue aggravation or progression of the preservice condition. The Board assigns these opinions significant probative value as they are based upon a review of the relevant records and provided underlying explanation. See Prejean, 13 Vet. App. at 448-9; Stefl, 21 Vet. App. at 124. To the extent the Veteran asserts that he has PTSD or a mental disorder superimposed on a personality disorder, the Board finds that his statements are not competent lay evidence. The diagnosis of a particular mental health disorder is not capable of lay observation, as opposed to noting the presence of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Thus, the most probative evidence of record indicates that there is no superimposed condition upon the Veteran’s personality disorder and no diagnosis of PTSD. Accordingly, service connection is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Remand is required for an addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Even if no hearing loss is present during service, 38 C.F.R. § 3.385 does not preclude an award of service connection for hearing loss established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits at the time of separation from service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In a November 2020 VA examination report, the examiner opined that although the Veteran’s military occupational specialty had a high probability of noise exposure, at separate his hearing was within normal limits. Although the examiner also referenced the 2014 VA examination at which VA hearing loss was not shown, it appears the negative nexus opinion was essentially solely supported by the lack of hearing loss at discharge. Accordingly, and addendum opinion must be obtained. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of hearing loss from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hearing loss had onset in, or is otherwise related to, active service. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.