Citation Nr: 21015588 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-27 975 DATE: March 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, post-traumatic stress order (PTSD), and anxiety is denied. Entitlement to service connection for chronic demyelinating polyneuropathy, to include facial numbness and the right shoulder, is denied. FINDINGS OF FACT 1. The Veteran does not have a psychiatric disability related to service. 2. The Veteran does not have a chronic demyelinating polyneuropathy related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. The criteria for service connection for a chronic demyelinating polyneuropathy disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2020 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board notes the RO developed the chronic demyelinating polyneuropathy and the right shoulder separately; however, during the August 2020 Board hearing the Veteran’s testimony indicated the right shoulder was a part of the chronic demyelinating polyneuropathy. As such, the Board has recharacterized the issue. The Board notes that the Veteran’s service treatment records are not associated with the claims file. In May 2012 the VA issued a formal finding on the unavailability of the service treatment records (STRs) detailing the efforts to obtain the records. In a June 2012 letter, the Veteran was informed that VA had been unable to obtain his service treatment records, and that the Veteran should submit any copies of service medical records. The Board is mindful that, in a case such as this, where service treatment records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that the service treatment records are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board’s analysis has been undertaken with this heightened obligation set forth in Cuevas and O’Hare in mind. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (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). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 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). In PTSD claims that are not combat-related, do not pertain to the fear of hostile military or terrorist activity, nor related to a Veteran’s status as a prisoner of war, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by “credible supporting evidence.” 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128, 142 (1997). For certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The enumerated diseases include psychoses, but do not include PTSD or any other psychiatric or mental disorder that has been diagnosed in this case. As such, there is no presumption of service connection for any of the conditions at issue. See 38 C.F.R. § 3.384. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for an acquired psychiatric disability The Veteran claims he suffers from a psychiatric disability related to service. Specifically, during the August 2020 Board hearing he testified to treatment for anxiety and depression while in Pearl Harbor around 1991 or 1993. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current disability is related to service. Therefore, service connection is not warranted. In a September 2012 statement he alleged all of the stressors occurred around August 1990 to July 1992 on the USS Tunny. Specifically, while serving as the supply department head on the USS Tunny there was a nuclear-powered fast attack and the ship experienced a reactor incident which reduced the Veteran’s confidence in its continued safe operation. Also, he alleged the USS Tunny was involved in an incident that required an emergency blow causing the USS Tunny to “rocket” to the surface completely blind. Additionally, a soviet submarine impacted USS Tunny’s towed sonar array less than 10 feet away and there was a fire in the ventilation system resulting in the ship filling with smoke. In September 2012 Social Security Administration (SSA) records the Veteran reported the onset of the depression and anxiety began in November 2010. A June 2013 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with severe recurrent major depressive disorder with psychotic features, PTSD, and alcohol dependence in remission. The examiner, a registered nurse, opined “the PTSD is primarily from the Veteran’s experiences on the Tunny where he truly thought he was going to be crushed to death, and where he had no confidence in his fellow servicemen.” It was noted, the Veteran experiences a substantial level of depression and anxiety in the form of PTSD. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran does not have a psychiatric disability related to service. Initially, the Board notes the Veteran served as a supply officer on the USS Tunny from July 1990 to August 1993. The RO denied the claim based on an inability to corroborate the occurrence of the stressor. In August 2013 the RO received correspondence indicating clinical records from Pearl Harbor from 1992 to 1993 for the Veteran could not be located. However, the command history for the USS Tunny are in the record. In January 1991 the USS Tunny commenced a one-month EastPac cruise. In February 1991 the USS Tunny received an average on the ships safeguard examination. In April 1991 a dry deck shelter was completed. In June 1991 an average on tactical readiness evaluation was received. In August 1991 there was a burial at sea. In August 1991 the USS Tunny hosted a COMSUBPAC change of command. In October 1991 the USS Tunny began a 6-month Western Pacific deployment. As a result of the deployment, the soldiers aboard were awarded the Navy Expeditionary Medal. The Veteran’s personnel records do not corroborate any combat exposure. Although the Veteran received the Navy Expeditionary Medal, this medal does not, in and of itself, corroborate that the Veteran was in combat during his service. The Veteran’s statements and testimony also do not establish that he ever engaged in combat with the enemy but are more supportive of the assertion that he did not have confidence in the USS Tunny’s continued safe operation. To the extent that the Veteran argues service connection for PTSD is related to the fear of hostile military or terrorist activity, the Board finds the evidence weights against this argument. VA defines “[f]ear of hostile military or terrorist activity” as being where “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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft. See 38 C.F.R. § 3.304(f)(3). The Veteran did not relate to any circumstance during his service that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others. He was afraid of a potential for danger associated with the operation of the ship but did not directly experience any hostile military activity. Specifically, during the August 2020 Board hearing he testified to the ship operators lacking the experience and technical expertise to make him feel safe. The evidence does not corroborate any stressor in service, which is one of the critical elements to establish a claim for PTSD. As such, the Board finds the June 2013 VA examiners opinion lacks competent medical evidence as the opinion is based on an uncorroborated stressor. The Board acknowledges the fact that the June 2013 VA examiner is a registered nurse and VA procedures require that a psychiatric condition initially be diagnosed by certain medical professionals, or under those individuals’ supervision. See 38 C.F.R. § 3.304(f) (“Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter.” (Emphasis added)); M21 III.iv.3.D.2.h (stating who is competent to initially diagnose mental health disorders). However, as described above, the Veteran has not provided evidence of a fear of hostile military or terrorist activity. As such, any defect as it relates to the examiner and PTSD does not warrant a new VA examination. The record does not consist of a corroborated stressor or a stressor consistent with the places, types, and circumstances of the Veteran’s service, as there is convincing evidence to the contrary, i.e. the command history for the USS Tunny. The Board acknowledges the Veteran has a severe recurrent major depressive disorder with psychotic features and alcohol dependence in remission diagnosis. However, the Board finds those conditions are not related to service. As it relates to the severe recurrent major depressive disorder, it appears the June 2013 VA examiner associated the depression with PTSD, as it was noted the Veteran experiences a substantial level of depression and anxiety in the form of PTSD. Again, the evidence weighs against a finding of PTSD related to service as the stressor has not been corroborated. As it relates to the alcohol dependence in remission the Board notes the DD-214 indicated the Veteran was discharged for alcohol abuse rehabilitation. The Board finds the alcohol abuse diagnosis is the result of willful misconduct. See 38 C.F.R. § 3.1(n). VA has defined willful misconduct as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1 (n)(3). The pertinent regulations also specifically provide that the simple drinking of an alcoholic beverage is not of itself willful misconduct. 38 C.F.R. § 3.301 (c)(2). But the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. Id. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that these sections preclude compensation for (1) a primary alcohol abuse disability incurred during service, and (2) any secondary disability (such as cirrhosis of the liver) resulting from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, disability compensation may be paid for an alcohol abuse disability that is due to a service-connected disability. Id. Such compensation is only available where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful misconduct. Id. at 1381. In this case the evidence demonstrates that the Veteran has an alcohol abuse disability; however, it is not due to a service-connected disability. Additionally, when asked why he turned to alcohol in service, the Veteran’s testimony was “Well, on my second tour, I had back to back sea tours and the only thing that I recalled on the Tunny, just I felt unsafe on the Tunny.” Again, the Veteran references safety concerns which has not been determined as a result of a service-connected disability. There are no credible and competent medical opinions or lay evidence that purports to relate a current acquired psychiatric disorder to service. The only evidence weighing in favor of the claim comes from his assertions that his psychiatric disability is related to service. While the Veteran is competent to report some symptoms of a psychiatric disability experienced at any time, he is not competent to opine on whether there is a link between the current psychiatric disability and the claimed in-service stressor. Such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the development of a psychiatric disability, and knowledge of the multiple potential etiologies of his psychiatric disability, which he is not shown to possess. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see also Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran’s lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue). The Veteran has not shown he has the requisite medical expertise to render an opinion as to whether the Veteran’s current psychiatric disability is related to service. Thus, his statements purporting to link the current psychiatric disability to service are assigned no probative value. The Board is obligated under 38 U.S.C. § 7104 (d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the September 2012 SSA records the Veteran reported the onset of the depression and anxiety began in November 2010. However, During the August 2016 Board hearing the Veteran reported treatment for anxiety and depression in service. These statements are conflicting. In weighing the conflicting statements provided by the Veteran, the point in time in which the statement was made is important because a description of an event which is closer to the time that event allegedly occurred is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). The Board finds the August 2016 statement is not credible as it is inconsistent with the earlier SSA statement. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record). Furthermore, even if the STR’s had been located and identified treatment for depression or anxiety in service, the record is devoid of an opinion relating the current diagnosis to a corroborated in-service stressor. For all the reasons set forth above, the evidence fails to show that a psychiatric disability is related to service. As the preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection is not warranted for a psychiatric disability. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for chronic demyelinating polyneuropathy The Veteran claims he suffers from a chronic demyelinating polyneuropathy related to service. Specifically, during the August 2020 Board hearing he testified to experiencing arm pain in service for two weeks and suffering shoulder pain from the physical aspects of his service. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current disability is related to service. Therefore, service connection is not warranted. In September 2012 SSA records the Veteran reported he suffers from an auto-immune disease which causes pain in both hands and right shoulder. A June 2013 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with chronic demyelinating polyneuropathy, depression and anxiety. The examiner opined the Veteran had his first attack in November of 2010 when he was involved in a near collision with an automobile while riding a bicycle. He was evaluated at the VA it was determined that he may have anterior interosseus nerve syndrome; however, no specific diagnosis was made. During the year of 2012 the Veteran underwent several evaluations and it was concluded that he had a diagnosis of inflammatory degenerating polyneuropathy. He has weakness of the shoulders, arms, and hands. There was no etiology opinion rendered. In the August 2014 notice of disagreement, the Veteran alleged the first attack of demyelinating polyneuropathy occurred in 1992 with intense shoulder pain and facial numbness. In November 2016 VA treatment records reflected complaints for bilateral shoulder pain. The Veteran reported he was in a bicycle accident on November,10, 2010. Five days later he developed aching pain that extended from his right shoulder across the upper back. Over 8 weeks, pain improved, but he began to note weakness of the flexors in his hands as well as scapular winging. He indicated symptoms were stable for about a year until February 2012, when he had a recurrence of severe pain across the upper back. He also developed numbness over the anterior aspect of his right distal leg at this time. EMG demonstrated multifocal neuropathy with involvement of right brachial plexus. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. Initially, the Board notes during the August 2020 Board hearing the Veteran testified to visiting a clinic at a subbase in Pearl Harbor for his physical conditions. Unfortunately, the RO has been unable to locate service treatment records for the Veteran. With the heightened obligation in mind, the evidence is against a finding that the chronic demyelinating polyneuropathy is not related to service. The Veteran has provided inconsistent statements regarding the onset of the shoulder pain. In both November 2013 and November 2016, he reported right shoulder pain five days after a bicycle accident in November 2010, 17 years post service. However, during the August 2020 Board hearing he testified to the shoulder pain beginning in service. The Board finds the statements reported in the VA records are more credible then the Board hearing testimony. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Buchanan, 451 F.3d at 1336; Pond v. West, 12 Vet. App. 341, 345 (1999) (while the Board is not free to ignore a claimant’s assertion as to any matter on which he is competent to offer an opinion, it may properly consider the personal interest a claimant has in his or her own case); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (personal interest may affect the credibility of testimony). Notably, the June 2013 VA examiner also provided an opinion indicating the chronic demyelinating polyneuropathy is related to the November 2010 bicycle accident. The Veteran has not provided any medical opinion to the contrary. For all the reasons set forth above, the evidence fails to show that the chronic demyelinating polyneuropathy disability is related to service. As the preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection is not warranted for a psychiatric disability. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.