Citation Nr: 21021534 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-16 904 DATE: April 13, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for a left wrist disability is denied. Service connection for a right wrist disability is denied. REMANDED Service connection for a left knee disability is remanded. Service connection for a low back disability is remanded. Service connection for left lower leg sciatica is remanded. Service connection for a cervical spine disability is remanded. Service connection for a right hip disability is remanded. Service connection for a left hip disability is remanded. Service connection for a right ankle disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had an acquired psychiatric disorder or chronic bilateral (left and right) wrist disability during his time in service, or that he had a psychosis or arthritis in either wrist within a year of his discharge from service, or that these disabilities are otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for an acquired psychiatric disorder and for a bilateral wrist disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1969 to July 1970. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 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 an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Service connection for an acquired psychiatric disorder is denied. The Veteran contends that he suffers from a psychiatric disorder, particularly posttraumatic stress disorder (PTSD), because of traumas (“stressors”) that occurred during his time in service. Service connection for PTSD, in particular, requires: medical evidence of a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)), a medically established link between the current symptoms and a stressor in service, and credible supporting evidence that the claimed stressor in service occurred. See 38 C.F.R. § 3.304(f). Here, however, the Board concludes that, while the Veteran has a current diagnosis of a psychiatric disorder, the preponderance of the evidence weighs against finding that it began during his service or is otherwise related to an in-service injury, event, or disease. At the forefront, there is a question of the Veteran’s credibility in relation to this claim, as well as concerning his remaining claims. With regards to his claim for service connection for an acquired psychiatric disorder, the Board sees that his reports of traumas (“stressors”) in service are inconsistent. While he reported at one point an explicit sexual assault, so military sexual trauma (MST), he later reported a completely different sexual assault at another point during the appeal period. He then, in other statements, did not report experiencing any sexual assaults, and in fact denied that, but instead reported witnessing the death of a fellow serviceman, or, at other times, having been physically assaulted by civilians. He also reported having served in combat while in Vietnam, although there is no indication in the record that he served in Vietnam or in combat. These patent inconsistencies tend to undermine the credibility of his contentions and call into question the actual occurrence of these claimed events – even recognizing the certain concessions that are made and lesser pleading and proof requirements when a claim for PTSD is predicated on MST. 38 C.F.R. § 3.304(f)(5). Moreover, although, in the MST context, it is permissible to have after-the-fact medical nexus evidence etiologically linking PTSD to service, the most persuasive medical opinions in this case are unfavorable to the claim, not instead supportive of it and are more probative than the medical opinions contrarily supporting the claim such that, on the whole, the evidence for versus against this claim is not in relative balance (equipoise).   If a PTSD claim is based on in-service personal assault, so including MST, evidence from sources other than the Veteran's service records may corroborate his account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). The Court clarified in YR and Patton that the general rule discussed in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in-service stressor, does not apply to PTSD claims based on personal/sexual assault. See also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (reiterating that, when a claim is predicated on personal/sexual assault, a post-service examination of a Veteran may be used to establish the occurrence of the claimed stressor). Courts have recognized that, since sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported until years later. See Menegassi at 1383; see also Bradford v. Nicholson, 20 Vet. App. 200 (2006). Here, though, in this regard, two VA examiners thoroughly interviewed the Veteran and reviewed the claims file and concluded that it is less likely than not that his psychiatric disorders (so irrespective of diagnosis) are related to his service. The August 2015 VA examiner found that the Veteran’s inconsistent statements of sexual assault, coupled with his previous denial of any impact of sexual assault on his psychiatric functioning, as well as other inconsistent statements made during the psychiatric evaluation, made his statements highly questionable. The examiner also concluded that an accurate psychiatric diagnosis could not be made absent more in-depth counseling and treatment. The examiner further surmised that the Veteran’s presentation likely fit within the traits of antisocial personality disorder. These same traits presented in childhood. The Veteran’s passive-aggressive characterological traits were ingrained features in his personality. Based upon this psychological assessment, the examiner found that it was unlikely the Veteran has PTSD related to the reported service traumas. Rather, his psychiatric symptoms were related to a likely personality disorder that began prior to his service. His presentation did not suggest service-related PTSD due to his pre-existing personality disorder. A personality disorder is not a "disease" or "injury" within the meaning of applicable legislation and, therefore, cannot be service connected according to VA regulations. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Congenital or developmental "defects," such as personality disorders, automatically rebut the presumption of soundness and therefore are considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (finding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, "[s]ervice connection of personality disorders, whether on a direct basis or by aggravation, is...prohibited...." 61 Fed. Reg. 52,695. However, 38 C.F.R. § 4.127 provides that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected, and, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis. See VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, diagnoses of other psychiatric disorders may provide a basis for service connection if the evidence shows these other disorders are superimposed upon the diagnosed personality disorder. But, notably, even recognizing this, the February 2020 VA examiner also found that the Veteran likely met the criteria for a diagnosis of antisocial personality disorder. And, while this more recent examiner was also hesitant to provide that diagnosis after only one interaction, similarly to the August 2015 VA examiner, it was clear the Veteran exhibited the symptoms for this diagnosis. This examiner explained that all the Veteran’s symptoms, including his depression, are accounted for by the emotional lability seen in this disorder. The examiner concluded that the Veteran’s personality disorder, which was a characterological disorder that began prior to his service, is less likely than not related to his service. This examiner based these conclusions upon a thorough interview of the Veteran and a review of the record. The examiner pointed out that the service treatment records (STRs) did not show report of or treatment for the claimed stressors. Moreover, as explained, while that, alone, is not determinative of whether the alleged events in service occurred, the VA examiner also considered it significant that the post-service records also do not show reports of these service stressors for many decades following service or treatment for psychiatric symptoms related to these stressors. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). The VA examiner also reviewed two positive medical opinions in support of the Veteran’s claim but found that they were not persuasive and did not impact the clinical conclusion reached. Further concerning that, the Board agrees and also finds that the two private opinions offered in support of the claim are of less probative value than the two VA opinions against the claim. In March 2015, a private psychologist concluded that the Veteran’s adjustment disorder was likely related to his service. This psychologist offered no rationale for that conclusion, however, and that primarily is where the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).   This psychologist conducted an extensive interview of the Veteran, but the Veteran reported stressors in service that, as mentioned, are not only inconsistent with the record – as a whole – but also remain unverified to the extent they need to be. Specifically, he reported having witnessed combat while in Vietnam. However, as already indicated, service in Vietnam has not been shown to have occurred, much less involving combat against an enemy force. A finding that the Veteran engaged in combat with the enemy requires that he have 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. See VAOPGCPREC 12-99 (October 18, 1999). This resultantly means he is not entitled to the benefit of the lesser pleading and proof requirements offered by 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) generally, as relating to diseases or injuries claimed to have been sustained in combat, and to § 3.304(f)(2) as concerning claims for PTSD due to combat experience, especially. Also, in this interview, the Veteran did not report any sexual assault stressors while in service, whereas to the 2015 VA examiner he reported extensive sexual and physical assaults in service. The February 2020 VA examiner also noted that the March 2015 private psychologist did not have access to the complete record and, therefore, was unable to review the Veteran’s other contentions or circumstances of service other than his DD Form 214. And, while it is true that mere review of the claims file is not necessarily determinative of the probative value of a medical opinion, since the Veteran may be a credible historian and, thus, given a credible recitation of his relevant history, for the reasons and bases already discussed, the Veteran conversely has not been shown to be a credible historian in recounting what did versus did not occur to him during his service. See, e.g., Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005).   The Board consequently finds the February 2020 VA opinion and earlier August 2015 VA opinion more probative – and therefore more persuasive, than the March 2015 private evaluation and opinion since it notably is based upon incorrect information concerning the circumstances of the Veteran’s service, an incomplete record, and lacks any explanation for the conclusion reached. It is entirely permissible for the Board to favor some medical opinions over others if it offers an adequate statement of reasons or bases. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). Finally, the Board also has considered the February 2015 private opinion also offered in support of the claim but finds that it, too, is of lesser probative weight. As the February 2020 VA examiner pointed out, this other opinion relating the Veteran’s supposed PTSD to his service was provided by a chiropractor who, as the VA examiner highlighted, does not have the requisite subject matter knowledge or expertise to provide an opinion on a psychiatric disorder, so including in terms of appropriate diagnosis and its etiology, therefore in relation to the Veteran’s military service. Similarly, although the Veteran believes that his psychiatric disorder is related to his service, since a layman, he also is not competent to make this critical determination. This issue is medically complex, not merely simple, as it requires esoteric training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, to reiterate, the Board ultimately gives more probative weight to the August 2015 and February 2020 VA examiners’ opinions, for the reasons and bases already discussed. Thus, as it stands, there is no competent and credible (therefore no probative) evidence of a stressor in service. There additionally is no probative evidence of a diagnosed psychiatric disorder related or attributable to the Veteran’s service. And, as the August 2015 VA examiner explained, there equally is was no indication the Veteran’s likely personality disorder caused or aggravated PTSD or any other superimposed psychiatric disorder.   While the service treatment records (STRs) show that, in June 1970, the Veteran was noted at one point to have ‘bad nerves’ and appeared hostile when receiving treatment, and was shown to have conduct issues at another point while in service, as explained by both VA examiners, that is consistent with a pre-existing personality disorder. A personality disorder on its own, without evidence of another superimposed psychiatric disorder during service, is not a disability for which service connection may be awarded. A superimposed psychiatric disorder has not been shown in this instance. Thus, the Board finds that the elements of service connection for an acquired psychiatric disorder have not been met and, therefore, the claim must be denied. 2. Service connection for a left wrist disability is denied. 3. Service connection for a right wrist disability is denied. The Veteran contends that he has left and right wrist disabilities owing to a fall that he sustained during his service. The STRs reflect that, in March 1970, the Veteran was treated for a cut on his right wrist. However, no further record of injury or treatment involving either wrist (so right or left) was shown in service. While these records show that he fell from a ladder and bruised his knee in February 1970, there was no mention at the time of an injury to either wrist. Moreover, although there is a current diagnosis of a wrist disability – namely, of osteoarthritis of both wrists, there is no probative indication of osteoarthritis in either wrist during the Veteran’s service, or within the one-year presumptive grace period following his discharge from service, or other indication the osteoarthritis now affecting his wrists is related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The Board resultantly finds that the preponderance of the evidence is against concluding the Veteran’s wrist disabilities are attributable to his service. For one, as shown by the STRs, there is no indication of a “chronic” disability involving either wrist while in service. Where chronicity of disease or injury in service is not shown, or legitimately questionable, then continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is required to show the necessary link between current disability and service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). But, here, there additionally is a lack of credible indication of a continuity of wrist symptoms for many years following the Veteran’s separation from service. While he has reported experiencing significant pain in both wrists since his service, his reports of this generally are not credible. He says he has experienced significant pain and ongoing symptoms in all the joints on appeal since his service, which the VA psychiatric examiners found to be incredulous. His STRs and post-service treatment records also are inconsistent with these reports of ongoing or recurring symptoms. Moreover, in September 2015, a VA examiner concluded that it is less likely than not the Veteran has a right wrist disability related to his service. At the time, physical examination of the wrists (so of both) showed no evidence of disability or functional impairment. The Veteran either reported or showed evidence of a small, one-centimeter scar on each wrist but did not report that either scar was related to an incident of his service, including trauma or other injury in service. In March 2020, a VA examiner conducted physical examination of the Veteran and diagnosed osteoarthritis of the right and left wrist. But this examiner also concluded that it is less likely than not the Veteran’s wrist disabilities, and particularly as relating to his right wrist, are attributable to his service. This VA examiner, in the summary section, noted review of the February 2015 private examination of record, as was directed by the previous Board remand. This examiner, however, found that the lack of indication in the STRs of a chronic wrist disability (or wrist injury) or indication of treatment for a wrist disability for decades after service made it unlikely the current wrist disabilities are related to the Veteran’s service. Rather, according to this VA examiner, the newer diagnosis of osteoarthritis of the wrists most likely is from the natural aging process. Continuity of symptoms, not treatment, is the essence of 38 C.F.R. § 3.303(b). See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); Savage v. Gober, 10 Vet. App. 488, 496 (1997). However, it is permissible for the Board to consider such a long lapse of time between conclusion of the Veteran’s service and initial indication of the now claimed disability in determining whether it dates back to his service or is related or attributable to his service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence showing continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the now claimed disorder). The Board finds that the two VA examiners’ opinions are highly probative evidence weighing heavily against these claims. The Veteran has provided relatively very few contentions as to how his current wrist disabilities are related to his service. On the other hand, the VA medical opinions and the record – as a whole – do not tend to support his contentions. Rather, the most probative evidence does not tend to show indication of any chronic (i.e., permanent) injury or consequent disability in service, or osteoarthritis within a year of discharge, or credible indication of a continuity of symptoms since service or otherwise of a nexus relating the present disabilities to the Veteran’s service. Accordingly, because the preponderance of the evidence is against the Veteran’s claims for service connection for left and right wrist disabilities, these claims must be denied.   REASONS FOR REMAND 1. Service connection for a left knee disability is remanded. 2. Service connection for a low back disability is remanded. 3. Service connection for left lower leg sciatica is remanded. 4. Service connection for a cervical spine disability is remanded. 5. Service connection for a right hip disability is remanded. 6. Service connection for a left hip disability is remanded. 7. Service connection for a right ankle disability is remanded. 8. A TDIU is remanded. The Veteran additionally contends that his left knee disability, cervical and lumbar spine disabilities, left leg sciatica, and bilateral hip and right ankle disabilities are directly related to his service or secondary to his already determined to be service-connected right knee disability. Service connection has been established for degenerative joint disease (DJD), i.e., arthritis of the right knee, also for anterior instability of this knee and for a consequent scar. In March 2021, the Veteran submitted a private medical opinion relating these other claimed disabilities to his right knee disability, with the rationale that his right knee disability has created a gait disturbance that has caused or aggravated these other disabilities. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995).   Although this private examiner did not appear to physically examine the Veteran, his medical records reportedly were reviewed. These records do show that he walks with an antalgic gait, as noted in his VA treatment records. But also, notably, the March 2020 VA opinions addressing the theory of secondary service connection did not discuss whether the Veteran’s antalgic gait is due to his right knee disability or whether this altered gait has caused or aggravated these other claimed disabilities. Therefore, more medical comment is needed before deciding these remaining claims, also the TDIU claim since it is inextricably intertwined because it is derivative of these other claims. Accordingly, these claims are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician. If a VA examination cannot be scheduled, obtain an addendum opinion from an appropriate clinician. The examiner must review the claims file – including a complete copy of this decision and remand. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment of earning capacity, then the examiner should consider them a ratable “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s left knee disability, cervical and lumbar spine disabilities, left leg sciatica, and/or bilateral hip disabilities and right ankle disability at least as likely as not caused by his service-connected right knee disability (to include especially considering whether due to his altered gait, if attributable to his right knee disability)? Alternatively, are the Veteran’s left knee disability, cervical and lumbar spine disabilities, left leg sciatica, and/or his bilateral hip disabilities and right ankle disability at least as likely as not aggravated by his service-connected right knee disability (to again include when considering his altered gait, if due to his right knee disability)? *Thus, the examiner must be certain to comment on both causation and aggravation. *The examiner should discuss the impact of the Veteran’s antalgic gait when providing the opinion requested, including in terms of whether his altered gait due to his right knee disability and, if so, whether it caused or aggravated these other claimed disabilities? KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.