Citation Nr: 21023047 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-12 953 DATE: April 20, 2021 ORDER Entitlement to service connection for a psychiatric disability, to include antisocial personality disorder is denied. Entitlement to service connection for a substance abuse disorder, to include as secondary to a claimed psychiatric disorder, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar strain with degenerative disc disease and/or a claimed psychiatric disorder, is denied. FINDINGS OF FACT 1. The Veteran’s personality disorder is not a disability for VA compensation purposes, and there is no evidence of a superimposed disease or injury during service. 2. The Veteran does not have a valid diagnoses of post-traumatic stress disorder (PTSD), anxiety, or depression at any time during the appeal period. 3. The Veteran’s substance abuse disorder was not caused or aggravated by his service-connected tinnitus or service-connected lumbar strain with degenerative disc disease. 4. The Veteran’s erectile dysfunction is not secondary to the Veteran’s service-connected lumbar strain, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria entitlement to service connection for a psychiatric disorder, to include antisocial personality disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.127. 2. The criteria for entitlement to service connection for a substance abuse disorder, to include as secondary to a claimed psychiatric disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.1(n). 3. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar strain with degenerative disc disease and/or a claimed psychiatric disorder, have not been 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 had active duty service in the United States Army from February 1970 to May 1972, including service in Vietnam. In August 2013, December 2015, September 2017, September 2018, and September 2020, the Board remanded the above issues to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a psychiatric disorder is denied. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that is related to his military service. Specifically, the Veteran contends that his antisocial personality disorder is related to his military service, particularly events he experienced in Vietnam. First, the Board will determine whether the Veteran has a current acquired psychiatric disorder. On this question, the Board notes that the Veteran claims to have PTSD. The medical evidence of record also notes diagnoses of anxiety disorder not otherwise specified (NOS), depression, and antisocial personality disorder. PTSD Regarding PTSD, as the Veteran’s appeal was certified to the Board in March 2013, a diagnosis of PTSD must be established in accordance with the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The Board finds that the Veteran does not have a diagnosis of PTSD that conforms to either the DSM-IV or DSM-5 criteria. VA examiners in June 2008, December 2015, December 2017, May 2019, and September 2020 concluded that the Veteran did not have a diagnosis of PTSD that conforms to the DSM-IV or DSM-5 criteria. In light of the determination by the VA examiners that no such diagnosis was warranted under the DSM-IV or the current DSM-V, the Board finds that the Veteran does not have a current valid diagnosis of PTSD for VA purposes. Absent a diagnosis of PTSD, service connection for PTSD is not warranted. Anxiety Disorder NOS and Depression Regarding anxiety disorder NOS and depression, the Board also notes that the evidence of record contains diagnoses of anxiety disorder NOS and depression. See July 2013 PTSD assessment; see January 2013 hospitalization report for pancreatitis. The Board recognizes that a diagnosis at any time during the appeal period can establish a current disability; however, the Court has also held that competent evidence that establishes the diagnosis to be in error can outweigh the diagnosis of record. McClain v. Nicholson, 21 Vet.App. 319, 321 (2007) (current disability requirement is satisfied if a disability exists at the time of filing or during the pendency of the claim, but can be overcome with competent evidence that the diagnosis is in error). In September 2018, the Board requested further discussion regarding the Veteran’s previous diagnoses of anxiety disorder NOS and depression that he received during the appeal period. The May 2019 VA examiner subsequently explained that the Veteran did not have valid diagnoses of anxiety disorder NOS and depression during the appeal period. With respect to the anxiety disorder, the May 2019 VA examiner explained that the Veteran’s July 2013 assessment of anxiety disorder was a “subthreshold” of PTSD symptoms and not a separate diagnosis of anxiety disorder. With respect to depression, the May 2019 examiner noted that the January 2013 “diagnosis” of depression was not made by a mental health provider and was not made following an actual assessment for depression. The May 2019 examiner concluded that the depression “diagnosis” was an “unmistakable misdiagnosis.” The May 2019 examiner’s opinions are probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the May 2019 examination findings regarding the evidence of a diagnosis of anxiety and depression to be the most probative evidence of record as to whether the Veteran had valid diagnoses of these conditions. The 2019 examienr explained why the prior diagnoses were in error, and based these findings on review of the record and an accurate presentation of the facts. Thus, the Board finds that the Veteran does not have valid diagnoses of anxiety disorder NOS and depression at any point during the appeal period. Lacking a diagnosis of anxiety disorder NOS and depression, service connection for these psychiatric conditions is not warranted. Antisocial Personality Disorder The Veteran has been diagnosed with antisocial personality disorder and there is no evidence contradicting this diagnosis. See December 2017 VA examination; see also May 2019 VA examination. With respect to the Veteran’s diagnosed antisocial personality disorder, the Board notes that personality disorders, such as the Veteran’s diagnosed antisocial personality disorder, are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, a disability that results from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. As to whether there was a superimposed injury during service, the May 2019 VA examiner provided negative opinions indicating the following: the antisocial personality disorder is not related to, or the result of, the Veteran’s military service; it was less likely than not exacerbated by or permanently aggravated beyond its normal progression by the Veteran’s military service; it is not secondary to any subclinical PTSD symptoms (such as nightmares) that the Veteran may have had at any point in his life; and there is not a superimposed disease or injury during service that either caused the Veteran’s antisocial personality disorder or that exacerbated it or made it permanently worse or aggravated it. As a rationale, the examiner explained that the medical literature indicates that personality disorders are first evident in childhood and adolescence. The examiner further reasoned that the Veteran displayed multiple symptoms of antisocial personality disorder prior to active duty as well as during active duty. Additionally, the Veteran’s antisocial personality disorder reflects a continuation of behaviors and symptoms firmly and unequivocally established prior to active duty. The examiner also emphasized that the Veteran has decreased his criminal behavior and substance use, with the exception of alcohol, consistent with the expected course of the disorder as described in DSM-5. The examiner concluded that the course of the Veteran’s antisocial personality disorder follows the well-documented course of the disorder established by the medical research literature. In September 2020, the same VA examiner concluded that, with regard to antisocial personality disorder, there is no evidence that there was a progression of the Veteran’s antisocial personality disorder during service. The examiner opined that the Veteran’s antisocial behaviors were present prior to active duty (e.g., irresponsible behaviors, criminal behavior, physically assaultive behavior, being truant from school, and refusing to do required work at school). These same behaviors or their equivalents continued while on active duty. The examiner reasoned that there was no progression per se, of antisocial behaviors or an antisocial personality disorder during his military service. Although the Veteran may have had more opportunities to engage in antisocial behaviors (e.g., going AWOL, failing to complete work) after his Vietnam deployment than during the deployment, the examiner noted that this does not indicate a progression of his pre-existing antisocial personality disorder during military service. In arriving at his opinion, the examiner acknowledged the Veteran’s lay assertions, his competence to attest to his symptoms, and the possibility of a superimposed injury or psychiatric condition on his pre-existing antisocial personality disorder that may have resulted from combat exposure. However, the examiner concluded that there is no evidence, medical or otherwise, that indicates a change of any sort in either the Veteran’s antisocial personality disorder or his general behavior from what was demonstrated by the Veteran prior to active duty. The examiner concluded that his behaviors prior to active duty, during active duty after the Vietnam deployment, and throughout his post-military life are consistent with a significant antisocial personality disorder that was well-established prior to active duty. The Board finds the May 2019 and September 2020 VA examiner’s opinions, taken together, probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Absent a disability that results from a mental disorder that is superimposed upon a personality disorder, entitlement to service connection for antisocial personality disorder is denied. 2. Entitlement to service connection for a substance abuse disorder, to include as secondary to a claimed psychiatric disorder, is denied. The Veteran contends that he has a substance abuse disorder that is secondary to a service-connected psychiatric disorder. Alternatively, the Veteran contends that his substance abuse disorder is directly related to his military service, to include events he experienced in Vietnam. Specifically, the Veteran testified seeing a sniper killed in front of him as well as seeing burning bodies while serving in Vietnam. See October 2015 hearing transcript. The Veteran reported that, when returning from Vietnam, he turned to alcohol and drugs to cope with his experiences in Vietnam. See October 2015 hearing transcript. Id. As an initial matter, the Board notes that service connection for alcoholism or substance abuse on a direct basis must be denied as a matter of law. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301(d). Compensation cannot be awarded pursuant to 38 U.S.C. §§ 105, 1110 either for a primary alcohol or drug abuse disability incurred during service or for any secondary disability that resulted from primary drug abuse or alcohol during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Thus, entitlement to service connection for substance abuse on a direct basis is denied. However, secondary service connection is available for drug and alcohol abuse if such abuse is found to be secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Compensation may be awarded only “where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” Allen, 237 F. 3d at 1381. To the extent that the Veteran is asserting that the Veteran’s substance abuse is secondary to a psychiatric disability, as explained above, the Veteran is not service-connected for a psychiatric disability, and thus, secondary service connection cannot be established on this basis. 38 C.F.R. § 3.310. Further, there is no competent medical evidence linking the Veteran’s substance abuse to any of the Veteran service-connected disabilities, specifically his tinnitus or back disability. With respect to the relationship between the Veteran’s substance abuse and his service-connected tinnitus, there is no competent medical evidence linking the Veteran’s substance abuse to the Veteran’s service-connected tinnitus, nor did the Veteran assert that his substance abuse was secondary to his service-connected tinnitus. Lacking a nexus tying the Veteran’s substance abuse to his service-connected tinnitus or service-connected back disability, entitlement to service connection cannot be granted on a secondary basis for these conditions. Accordingly, entitlement to service connection for substance use is denied. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar strain with degenerative disc disease and/or a claimed psychiatric disorder, is denied. The Veteran contends that he has erectile dysfunction that is due to his service-connected lumbar strain. Alternatively, the Veteran contends that his erectile dysfunction is due to his psychiatric disorder. First, the Board notes that the Veteran has a diagnosis of erectile dysfunction. See December 2017 VA examination. Therefore, the first element of service connection, a diagnosis, has been met. Second, the Veteran contends that his erectile dysfunction is due to his psychiatric disorder. However, given the Board’s denial of the Veteran’s service connection claim for an acquired psychiatric disorder and drug use as discussed above, the Veteran is not service connected for any psychiatric disorder. Moreover, the September 2020 VA examiner opined that the Veteran’s erectile dysfunction is not secondary to his antisocial personality disorder. The examiner reasoned that there is no medical literature to support the contention that antisocial personality disorder causes erectile dysfunction. Alternatively, the Veteran also contends that his erectile dysfunction is secondary to his lumbar strain, which is a condition for which he is service-connected. As it relates to the Veteran’s low back condition, the December 2017 VA examiner noted that, in the absence of radiculopathy, it is less likely than not that his sexual function would be affected. The examiner further noted that, on all his medical examinations of records, muscle strength of 5/5 is noted with normal touch discrimination in both lower extremities and 1+ reflexes. The examiner concluded that there is no evidence to support the fact that the Veteran’s back condition would exacerbate any loss of sexual function beyond its natural progression. The examiner further noted that the Veteran reports being able to achieve an erection necessary for penetration without the use of Viagra as well. Furthermore, the September 2020 VA examiner concluded that the Veteran’s erectile dysfunction was not caused by or aggravated by his service-connected lumbar spine disability (i.e., degenerative arthritis of the spine). As it relates to the low back condition, in the absence of radiculopathy, the examiner concluded that it is less likely than not that his sexual function would be affected. It was further noted that on all his medical examinations of record, a muscle strength of 5/5 is noted with normal touch discrimination in both lower extremities and 1+ reflexes. The examiner also noted that the first prescription noted in the Veteran’s record was in 2017. There is no evidence to support the fact that the Veteran’s back condition would exacerbate any loss of sexual function beyond its natural progression. It is further noted that the Veteran reports being able to achieve an erection necessary for penetration without the use of Viagra as well. Lacking a nexus connecting the Veteran’s erectile dysfunction to his service-connected lumbar strain, the Veteran’s service connection claim for erectile dysfunction cannot be granted on a secondary basis. As to whether the Veteran’s erectile dysfunction is otherwise directly related to his military service, in April 2016, the VA examiner concluded that the Veteran’s erectile dysfunction was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the etiology of the Veteran’s erectile dysfunction was likely multifactorial including age and all over health status. The examiner reasoned that the Veteran reported that he is able currently to achieve an erection sufficient for intercourse without medication and has never been prescribed medication for the condition. In December 2017, the VA examiner concluded that the Veteran’s erectile dysfunction is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran’s records are silent for any evidence of report, evaluation or treatment of erectile dysfunction. The examiner noted that the Veteran reported having a sextually transmitted disease during active duty in Vietnam, presumptive of sexual function at that time. The only mention of erectile dysfunction noted in the Veteran’s records is that noted by him and others on his claim file. The September 2020 VA examiner also opined that his erectile dysfunction was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran’s records are silent for any evidence of report, evaluation or treatment of erectile dysfunction. Indeed, the examiner noted that the Veteran reported having a sextually transmitted disease during active duty in Vietnam, presumptive of sexual function at that time. The only mention of erectile dysfunction noted in the Veteran’s records is that noted by him and others on his claim file. The examiner also noted that the medical evidence of record indicates that the Veteran did not experience erectile dysfunction for years after his discharge from active duty. The examiner noted that, at the time of the examination, the Veteran was 68 years old, and the Massachusetts Male Aging Study indicates that both the prevalence and incident rates of erectile dysfunction increases with age, affecting nearly 70 percent of men at age 70. The Board finds the VA examiners’ opinions in April 2016, December 2017, and September 2020, taken together, probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the above, the Board concludes that, while the Veteran has a current diagnosis of erectile dysfunction, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of erectile dysfunction is secondary to his service-connected lumbar strain or is otherwise related to an in-service injury, event, or disease. Accordingly, entitlement to service connection for erectile dysfunction is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.