Citation Nr: 21014805 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-17 392 DATE: March 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have a valid diagnosis of PTSD pursuant to the DSM-5 criteria. 2. The preponderance of the evidence is against a finding that the Veteran’s diagnosed acquired psychiatric disorder are etiologically related to his period of service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to February 1970 and was honorably discharged. He also served on active duty in the Army from April 1970 to September 1970; however, the character of discharge from this latter period of service is a bar to VA benefits and as such, no compensation based on such service is permitted. 38 C.F.R. § 3.12. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). In May 2019, the Board remanded this case for additional development. Also remanded at that time were the issues of entitlement to service connection for bilateral hearing loss and tinnitus. However, while on remand, in a September 2020 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. As these awards represent a full grant of the benefits sought with respect to these issues, these matters are resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Procedural and Factual Background It should be noted that the Veteran has an extensive psychiatric record that the Board will briefly summarize. The Veteran’s service treatment records are silent for any complaints or treatments of an acquired psychiatric disorder. Upon enlistment, the Veteran described having nervous trouble, but did not elaborate. His psychiatric examination was clinically normal. Upon separation, the Veteran’s psychiatric systems were clinically normal and he denied having nervous trouble, depression, excessive worry, nightmares, or excessive drinking. The earliest available treatment records reflect that the Veteran had a sporadic history of heavy alcohol abuse starting in approximately the 1970s. Treating mental health professions assessed him with paranoid schizophrenia. In January 1980, the Veteran sought help for worsening agitation, insomnia, paranoideations, and visual hallucinations. The Veteran described experiencing hallucinations and paranoideations since his discharge from service. The treating psychologist attributed his symptoms to his alcohol use and again diagnosed paranoid schizophrenia along with alcoholic hallucinosis. In July 1981, the Veteran attempted to commit suicide by walking out of a third story window. He sustained serious injuries, to include a fractured femur and a traumatic brain injury. The Veteran was admitted to the psychiatric unit at the VAMC where he was on suicide precaution and received medication; in August 1981, he was transferred to the medical unit for treatment for his physical injuries. In October 1981, the Veteran was returned to the psychiatric unit for continued mental health treatment. Contemporaneous treatment records reflect diagnoses of possible alcohol hallucinosis, possible traumatic organic brain syndrome, history of alcohol dependence, and rule out schizophrenia. He continued inpatient treatment of group therapy and medications. Prior to his discharge, the Veteran continued to have confusion and memory problems, but overall, his psychiatric condition improved. His medication was eventually discontinued, and he was cleared psychiatrically. In May 1990, the Veteran was admitted for inpatient alcohol treatment. At that time, the Veteran reported drinking for almost two decades; he stated that he started drinking socially at the age of 16 and his drinking increased while in Vietnam. He stated that current life stressors precipitated his most recent drinking episode. The Veteran was eventually discharged in June 1990 with a diagnosis of alcohol dependency and nicotine dependency. In June 1991, the Veteran again sought inpatient treatment, stating that he could not control his anxiety. At that time, he stated that he had been drinking for about a year prior to admission. He described experiencing flashbacks of being attacked by rockets and mortars while in Vietnam, along with hallucinations, nightmares, and sleep impairment. The Veteran described having an extensive history of heavy drinking, which he stated resulted in the breakup of his three previous marriages. The course of the Veteran’s inpatient treatment included detoxification protocol and admission to the PTSD program. Upon discharge, the Veteran was diagnosed with chronic, severe PTSD and continuous alcohol dependence. The treating physician found that while the Veteran improved enough to return to work, he would continue to need long-term psychiatric care for his PTSD. Subsequently, the Veteran’s medical history included PTSD based on the June 1991 diagnosis. In September 1991, the Veteran filed a claim for service connection for PTSD, which was denied in a January 1992 rating decision based on no verified in-service stressor. The Veteran timely appealed. Eventually, the Veteran was afforded a VA examination and contemporaneous social work assessment in April 1996 in relation to his claim. Unfortunately, as the Veteran was not able to respond to very simple questions or provide a coherent history regarding his condition, the examiner was unable to provide a firm diagnosis. However, based on the clinical picture provided by the medical records, the examiner suggested that the Veteran manifested an organic brain disease. In November 1996, the Veteran was again admitted for inpatient treatment. At that time, the Veteran presented with hallucinations, flashbacks, and impaired memory. Upon mental status examination, the Veteran appeared in poor reality contact and he was unable to hold a conversation. In addition, he reported experiencing auditory and visual hallucinations in the form of hearing voices and seeing “fingers come and get me.” He reported having a drinking problem since his miliary years and stated that until recently, he had been sober for 14 years. Treating professionals did not prescribe the Veteran any medication. Upon discharge in December 1996, the Veteran was diagnosed with the following: mild dementia, psychotic disorder, NOS, PTSD by history, alcohol dependence by history, and alcohol hallucinosis by history. Subsequently, the Veteran underwent a neuropsychological evaluation to assist in differential diagnosis and treatment planning. The psychologist found that the Veteran was a poor historian, as his periods of claimed sobriety coincided with periods of inpatient treatment related to his alcohol use. Ultimately, the neuropsychologist found that the Veteran’s psychotic symptoms were atypical of PTSD. Notably, the clinician explained, PTSD symptoms may include images, hallucinations, and sensations of re-experiencing events. However, the Veteran’s symptoms were more so paranoid in nature rather than troubling intrusions of thoughts. In addition, the clinician noted that the Veteran’s response to his hallucinations appeared to be more consistent with a thought disorder rather than PTSD. Upon additional evidentiary development, the Board denied the Veteran’s service connection claim on the bases that there was no clear diagnosis of PTSD nor was there any verified stressor that supported a diagnosis of PTSD. Most recently, in September 2009, the Veteran filed a request to reopen his claim for service connection for PTSD, which the Veteran asserted was related to an August 1969 enemy attack on his unit while in Vietnam. At the September 2010 VA examination, the examiner diagnosed cognitive disorder NOS pursuant to the DSM-IV. The Veteran’s symptoms at that time include sleep impairment, visual hallucinations, obsessive/ritualistic behavior, intermittent suicidal ideations, and severely impaired memory. The examiner was unable to diagnosis PTSD during the evaluation as the Veteran displayed significant cognitive difficulties. However, the examiner found that the Veteran’s reported stressor of his unit being attacked by the enemy met the DSM-IV stressor criterion for PTSD. However, the examiner was unable to provide an etiology for the Veteran’s cognitive disorder. Based on this examination, an October 2010 rating decision confirmed and continued the previous denial of service connection. In a September 2017 DPRIS response, the VA verified the Veteran’s claimed stressor of an August 1969 enemy attack to his unit. At the October 2017 VA examination, the examiner diagnosed schizoaffective disorder and unspecified neurocognitive disorder. Upon examination, the examiner found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD pursuant to the DSM-5. Regarding the Veteran’s symptoms, the examiner attributed the Veteran’s hallucinations and depressed mood to his schizoaffective disorder, while his anxiety, cognitive impairment, anxiety, and irritability were common to both schizoaffective disorder and the TBI. Ultimately, the examiner found that there was no clear proximal relationship between the Veteran’s military trauma and the onset of his psychiatric symptoms. In so finding, the examiner noted that schizoaffective disorder usually emerged in early adulthood as a result of genetics; however, life stressors and substance use could also be contributors. The examiner also found the Veteran’s previous diagnoses of PTSD were erroneous, as his symptoms were more consistent with schizoaffective disorder complicated by alcohol use. According to the examiner, the Veteran has never met full diagnostic criteria for PTSD based on the DSM. In a November 2017 addendum opinion, the examiner acknowledged the Veteran’s confirmed stressor but again found that the Veteran did not have PTSD. Rather, he manifested schizoaffective disorder which was less likely than not related to his period of service. Given the multitude of information surrounding the Veteran’s psychiatric care, in July 2018, the Board sought a Veterans Health Administration (VHA) expert opinion. In seeking this opinion, the Board posed the following questions: (1) what is the most appropriate psychiatric diagnosis or diagnoses for the Veteran; (2) is it at least as likely as not that any current psychiatric disorder either began during or was otherwise caused by the Veteran’s military service, and why or why not; and (3) is it at least as likely as not that the Veteran’s dishonorable discharge was the result of a manifestation of an acquired psychiatric condition in service. The July 2018 VHA opinion was ultimately provided by Dr. M.A.M., a Board-certified psychiatrist with 42 years of post-residency experience in the treatment of psychiatric disorders, over 11 years of which she has spent as a VA psychiatrist. Dr. M.A.M. asserted after a thorough review of his claims file that the most appropriate diagnoses for the Veteran’s psychiatric condition are chronic alcohol use disorder and a major neurocognitive disorder following his 1981 TBI. She also documented a history of alcohol hallucinations (which today is called alcohol induced psychotic disorder), which she said more likely than not would also include paranoia, labelled as paranoid schizophrenia in the 1970s. Of note, she declined to diagnosis the Veteran with PTSD, though she did observe that VAMC Birmingham treatment notes mention dementia. Dr. M.A.M. opined it was less likely than not that the Veteran’s conditions began in or were otherwise caused by his active duty service. She rationalized that the Veteran began drinking when he was a teenager and was drinking heavily by the time he was 23 years old, drinking daily during and after service. His neurocognitive issues began after he fell from a window in 1981, causing a significant traumatic brain injury and subsequent neurocognitive issues. She further reported that his hallucinations of fingers chasing him stemmed from alcoholic hallucinosis. The Veteran’s dishonorable discharge was less likely than not the result of a manifestation of an acquired psychiatric disorder during service according to the physician. She noted that the Veteran was discharged following his participation in an assault that caused bodily harm. She admitted that she could not find mention of alcohol use in the police reports but suggested that he was under the influence during his “antisocial activities” since the evidence suggests he was drinking heavily during this period of his life. In seeking this opinion, the Board instructed Dr. M.A.M. to consider critical evidence of record, including past diagnoses, his dishonorable discharge, his suicide attempts, his alcohol dependence. Regarding his 1970s diagnoses of a personality pattern disturbance and passive aggressive personality, she felt a “cluster B personality disorder” is more fitting based on his behavior at the time (i.e. stealing, attacking fellow soldiers), but that in any event, a passive aggressive personality disorder does not foreshadow any major psychiatric illness. When considering his June 1991 diagnosis for PTSD, she dismissed it as a “working diagnosis” not a full criteria DSM diagnosis as is standard. She further noted his hallucination about the fingers was more likely due to alcoholic hallucinosis rather than PTSD. Critically, she pointed out that the Veteran was discharged on no psychiatric medicine and without mood disorder/psychotic symptoms, the latter of which is unlikely in a person that suffers from a chronic condition such as PTSD or schizoaffective disorder. She did suggest, though, that this fits the picture for the Veteran when he was free from alcohol for months and thus did not experience alcohol-induced paranoia and hallucinations. She did not agree with the purported past diagnosis of paranoid schizophrenia provided immediately after service, stating paranoid schizophrenia is a lifelong illness with very rare remission. Dr. M.A.M. agreed with the findings of a September 2010 VA examination, stating that this diagnosis would be called a major neurocognitive disorder today and that people with the level of brain injury this Veteran has will be subject to mood disorders. She disagreed with the diagnosis of schizoaffective disorder provided by the October 2017 VA examiner, supporting her findings by noting the Veteran is not on psychiatric medications and no notes were found that support a continuing concern for mental health issues aside from dementia. Even with the concession of a stressor, Dr. M.A.M. opined that the Veteran does not have PTSD and his symptoms are attributable to either alcoholic hallucinosis or alcoholic paranoia with no aggravation of this condition beyond its natural course due to service. Most recent treatment records are silent for any complaints, treatments or manifestations of any psychiatric disability. The Veteran denies having any depressive symptoms and reports being stable. The appeal is now before the Board for adjudication. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). A finding that the veteran engaged in combat with the enemy, however, requires that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general “combat area” or “combat zone” but did not themselves engage in combat with the enemy. Effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). The amendment provides that, if a stressor claimed by a veteran is related to the veteran’s fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary. Id. “Fear of hostile military activity” is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire. Turning to the Veteran’s service connection claim for PTSD, the Board finds that service connection is not warranted as there is no current valid disability of PTSD, i.e., diagnosis conforming to the DSM-IV/V. As previously noted, the Veteran’s extensive psychiatric history contains various psychiatric diagnoses, to include PTSD. However, the Board finds that the June 1991 diagnosis of PTSD (and the subsequent PTSD diagnoses by history that result from it) are less probative than the remaining objective medical evidence of record. The treating clinicians who diagnosed the Veteran with PTSD did not discuss the DSM diagnostic criteria for PTSD and it did not appear that these clinicians had knowledge of the Veteran’s full disability picture. Rather, their diagnoses were based primarily on the Veteran’s subjective reports. The Board also finds the September 2010 and October 2017 VA examinations and July 2018 VHA opinion to be of greater probative value with regard to whether a diagnosis for PTSD was warranted. Notably, these medical examiners/experts used objective testing and specifically found that the Veteran did not meet the criteria for a PTSD diagnosis that conformed to the DSM criteria. Second, the conclusions of the VHA expert were based on a thorough review of the claims file, which provided a background and full disability picture regarding the Veteran’s medical history and claim. Even in light of the verified stressor, the October 2017 VA examiner and July 2018 VHA expert found that the Veteran’s symptoms and psychiatric patterns were not indicative of PTSD. Moreover, the July 2018 VHA expert noted that the Veteran was not in regular treatment or taking psychiatric medications on a regular basis, which is inconsistent with individuals with PTSD. Consequently, the Board gives more probative weight to the September 2010 and October 2017 VA opinions and July 2018 VHA expert opinion than the June 1991 PTSD diagnosis. Likewise, the Board finds that the preponderance of the evidence demonstrates that the Veteran does not have a diagnosis of PTSD that conforms to the DSM criteria as required to establish service connection for PTSD under 38 C.F.R. § 4.125(a). Thus, the remaining issue is whether the Veteran has an acquired psychiatric disorder other than PTSD that was caused or otherwise etiologically related to his period of service. Upon consideration of the record, the Board finds that service connection for an acquired psychiatric disorder is not warranted. In so finding, the Board finds that the most probative evidence of record on the issue of nexus is the July 2018 VHA expert opinion. In that opinion, the clinician considered the Veteran’s extensive psychiatric history and found that his symptoms were related to his chronic alcohol use disorder and his major neurocognitive disorder. The clinician cited to specific evidence in the Veteran’s medical history for the opinion that the Veteran’s neurocognitive disorder was not related to service but rather, was related to the documented 1981 TBI. The opinion is based on objective facts documented in the Veteran’s claims file coupled with sound medical principles. As the opinion is supported by documented facts and there is no opinion to the contrary, the Board assigns this opinion high probative value. The Board also finds the October 2017 VA examination and opinion is probative as well. Notably, while the examiner found, based on the objective facts, that the Veteran’s psychiatric disorders were not related to his in-service stressor. Rather, the examiner indicated that the Veteran’s psychiatric disorders were caused and/or aggravated by his alcohol use and 1981 TBI. On these facts, the Board finds that service connection for a psychiatric disorder is not warranted. The Veteran’s symptoms have been attributed to his alcohol use and post-service TBI. The record reflects, and the July 2018 VHA expert acknowledged, that the Veteran no longer exhibited symptoms when he stopped drinking. VA’s General Counsel has interpreted that direct service connection for disability resulting from a claimant’s own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. As such, direct service connection for the diagnosed alcohol use disorder must be denied as a matter of law. The Board has considered the Veteran’s statements, self-diagnosing an acquired psychiatric disorder and attributing it to his confirmed stressor. While the Veteran is competent to report events in-service that he observed or experienced, he is unable to provide a competent diagnosis of PTSD or any other acquired psychiatric disorder. Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Thus, the Board assigns no probative value to the Veteran’s self-diagnosis. In sum, the Board finds that the evidence preponderates against a finding that the Veteran has an acquired psychiatric disability that stems from his period of service, to include his verified stressor. Notably, neither the Veteran nor his representative have proffered any credible and probative evidence establishing a valid diagnosis of PTSD or an acquired psychiatric disorder attributable to his service. While sympathetic to the Veteran’s claim, the Board finds that service connection is not warranted. The claim is denied. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.