Citation Nr: 21024249 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 04-40 796 DATE: April 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran has a current diagnosis of PTSD. 2. The Veteran’s current psychiatric disorder, to include schizoaffective disorder, was not shown as chronic in service, did not manifest to a compensable degree within the applicable presumptive period, and continuity of symptomatology is not established; the current psychiatric disorders are not secondary to service-connected disability or otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 101, 105, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from December 6, 1990 to May 19, 1991, including service in the Southwest Asia Theater of operations from January 1991 to April 1991. He had additional periods of service in the Army National Guard (ARNG), including initial active duty for training (ACDUTRA) from July 1987 to September 1987, and a period of ACDUTRA from June 1988 to August 1988, when he completed a Basic Military Police (MP) course. He was discharged from the Florida ARNG and Army Reserve in February 1993. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2004 Agency of Original Jurisdiction (AOJ) decision that in pertinent part, denied service connection for PTSD. The Board has remanded this case to the AOJ multiple times, most recently in April 2018, for additional development. In September 2005, the Veteran presented testimony on the issue of service connection for PTSD before VLJ Osborne. In October 2016, the Veteran presented testimony on the issue of service connection for an acquired psychiatric disorder, to include PTSD, before VLJ Kennedy. Transcripts of these hearings are of record. As there have been hearings by two separate VLJs on the issue on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In a March 2017 letter to the Veteran, the Board offered him an opportunity for a hearing before a third VLJ. This letter was returned as undeliverable by the post office. The Board subsequently made repeated efforts to obtain the Veteran’s current mailing address, including by contacting his representative. The Board re-mailed the letter to the Veteran in January 2018, and he did not respond. The Veteran’s representative has submitted additional written argument in November 2017, July 2018, and March 2021. Therefore, the Board finds that there is no hearing request pending at this time, and the Board has complied with the requirements set forth in Arneson. (The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) will be addressed in a separate Board decision.) Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, including psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). As a threshold matter, “veteran” status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. §§ 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). Because the Veteran’s National Guard training duty was only occasional, the onset of his claimed condition must be related to a specific period of active service or training duty. National Guard duty is distinguishable from other reserve service in that a member of the National Guard may be called to duty by the governor of their state. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54, 57-58 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (21), (22)(C); Allen, supra. The Board observes that the Veteran has not yet established veteran status with regard to any periods of military service other than active duty from December 1990 to May 1991. The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ACDUTRA or INACDUTRA, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991). 1. Service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that his current psychiatric disorders, including PTSD, are due to combat during active duty, or other traumatic events in service. See September 2001 Vet Center intake assessment; September 2004 notice of disagreement; March 2012 written brief from Veteran’s representative (noting the Veteran's contention that his activation during Hurricane Andrew in 1992 caused his psychological disorder). Alternatively, the Veteran contends that his current psychiatric disorder is due to in-service chemical exposure (Sarin). See November 2005 substantive appeal; July 2010 Veteran statements. In these statements, he asserted that he had attention-deficit disorder (ADD) and adult attention-deficit hyperactivity disorder (ADHD) due to exposure to Sarin gas during service in Desert Shield/Storm. During the pendency of the appeal, the Veteran has reported different in-service stressors in support of his PTSD claim. His reported stressors include SCUD missile hits around the area where he was stationed in Saudi Arabia, hearing shrapnel hitting the building and chemical alarms going off frequently, serving in combat during Desert Storm, carrying dead and wounded bodies, subduing a violent American soldier who went berserk, and feeling responsible for the death of an Iraqi prisoner of war who was shot and killed by other U.S. soldiers after the Veteran started a religious argument with him. See September 2001 Vet Center intake assessment; August 2002 VA mental health note; September 2004 notice of disagreement; May 2009 and October 2010 VA examination reports; October 2016 Board hearing transcript; Veteran’s August 2017 statement. In March 2021, the Veteran's representative noted that the Veteran served during the Gulf War and guarded enemy prisoners-of-war in Saudi Arabia, and asserted that the Board should consider his fear of hostile and terrorist activity during this period. The Veteran has current diagnoses of stimulant use disorder with psychotic features, and amphetamine-induced psychotic disorder with hallucinations. See VA treatment notes dated in November and December 2020. A January 2021 VA discharge summary reflects a diagnosis of stimulant-induced psychosis. He has also been diagnosed with schizoaffective disorder, bipolar type. See October 2016 psychological evaluation for the Social Security Administration (SSA). Psychoses, which includes schizoaffective disorder and substance/medication-induced psychotic disorder, are enumerated conditions under 38 C.F.R. §§ 3.309(a), 3.384; Walker, 708 F.3d 1331. Over the years, he has also been diagnosed with several other psychiatric disorders, to include ADD, ADHD, depression, dysthymic disorder, amphetamine dependence, marijuana dependence, depression not otherwise specified (NOS), bipolar disorder, PTSD, and personality disorder NOS with schizoid, schizotypal and antisocial features. As the Veteran has been diagnosed with a psychiatric disorder, the question for the Board is whether a psychiatric disorder began during service or is at least as likely as not related to an in-service injury, event, or disease, or is proximately due to or aggravated by service-connected disability. The Board finds that a psychosis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records are negative for complaints, treatment, or diagnosis of a psychiatric disorder. VA treatment records show the Veteran was not diagnosed with a psychosis until December 2003, over a decade after his separation from his last period of active service and a decade outside of the applicable presumptive period. VA medical records reflect treatment for psychiatric complaints and substance abuse since 2000, and examiners opined that he had no signs of psychosis on examinations in July 2000, October 2000, and August 2002. A December 2003 psychology consult reflects that the Veteran reported that there were a few times when he was in his early twenties that he went days without sleeping (without drugs), and his mind often raced. The diagnoses were amphetamine dependence (hallucinations and delusions), polysubstance abuse, and rule out bipolar disorder with psychotic features versus schizoaffective disorder. The examiner stated that he was unable to separate mood swings from substance abuse. He also diagnosed personality disorder with schizotypal traits, marked emotional immaturity, and antisocial traits. In determining whether statements made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). In this regard, the Veteran does not contend that he experienced continuous symptoms of a psychosis since service. While the Veteran is competent to report having experienced symptoms of difficulty concentrating and depression since service, the Board finds that his reports of continuity of symptomatology are not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this case, such statements made for VA disability compensation purposes are of lesser probative value when in contradiction to contemporaneous histories he previously provided, including his previous statements made to medical providers in the course of seeking medical treatment. See Pond v. West, 12 Vet. App. 341 (1999). The Veteran’s statements are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing depression, excessive worry, loss of memory, frequent trouble sleeping, and nervous trouble of any sort in a March 1991 report of medical history. In a March 1991 Southwest Asia (SWA) Demobilization/ Redeployment Medical Evaluation, the Veteran denied nightmares, trouble sleeping, and recurring thoughts about Desert Shield/Storm. On VA examination in March 2009, the Veteran reported that his depression symptoms began in approximately 1995 or 1996, several years after separation from his only period of active duty in May 1991. VA medical records reflect that the Veteran has also made conflicting statements as to the date of onset of his ADHD symptoms. A July 2000 VA primary care note reflects that the Veteran reported a long history of ADHD. In October 2000, he reported that ADD was diagnosed eight months earlier. In July 2001, the Veteran reported that he had ADHD and used to take medication for this condition in school. However, in a July 2010 statement in support of his claim, he related that he was diagnosed with “Adult ADHD” because he had no typical symptoms as a child. Further, while the Veteran asserts that the reported symptoms were manifestations of ADHD or PTSD, he is not competent to determine that these symptoms were manifestations of ADHD or PTSD as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to substance abuse/dependence. See, e.g., January 2020 VA psychiatry consult diagnosing unspecified psychotic disorder, likely substance induced, and unspecified mood disorder, likely substance induced. Service connection for a psychiatric disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s psychiatric disorders and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Service connection for PTSD requires a medical diagnosis of PTSD 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). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). A veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). With regard to the Veteran's contention that he has PTSD due to combat, traumatic events in service, or due to fear of hostile and terrorist activity when he guarded enemy prisoners of war in Saudi Arabia, the Board notes that the Veteran has made varying contentions regarding events in service, including whether he served in combat, and regarding the date of onset of his symptoms. Some of his statements conflict with his prior reports, his prior statements to treatment providers, and his service personnel records, which reduces the credibility of his assertions. For example, he has sometimes reported serving in combat and receiving the Combat Action Ribbon, but his service personnel records do not show that he received such an award, do not reflect combat service, and do not show any combat awards or citations. The Veteran’s service personnel records show that during his only period of active service, he served in Saudi Arabia from January 1991 to April 1991 as an MP, assigned to the 705th MP Company. His principal duty was prisoner-of-war (PW) processing specialist. His service personnel records show that in June 1991 he was awarded an Operation Desert Storm certificate of achievement for meritorious achievement while serving with the 800th MP Brigade (PW). During his period of active duty, the 800th MP Brigade (PW) operated Enemy Prisoner of War (EPW) camps. See June 1991 After Action Report, 800th MP Bde (PW). The Veteran’s service personnel records do not reveal any combat awards or citations. After a review of the evidence of record, the Board finds that the Veteran did not engage in combat with the enemy during service. A September 2001 Vet Center intake assessment reflects that the Veteran reported that in the Persian Gulf, he was billeted at Khobar Towers in Saudi Arabia, there were multiple SCUD missile hits around the area, he heard shrapnel hit the building, and there were frequent chemical alarms. He said he was assigned to the 705th MP Company, which established an EPW stockade at Hafar Al Batin, which handled over 30,000 Iraqi EPWs. He said he felt very sorry for them since many were forced to fight, many were sick and died while in confinement, and he was negatively affected by their condition and treatment. He did not report serving in combat and did not mention any event in which a EPW was shot. The Veteran complained of an inability to focus and concentrate, depression, and an inability to keep a job. The Veteran believed his chemical exposures in the Persian Gulf caused these problems because he did not have these problems before that time. The examiner diagnosed Gulf War Syndrome, adult ADD, and major depression secondary to the other diagnoses. In VA memoranda dated in December 2020 and January 2021, a professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, stated that comprehensive research was conducted with regard to the Veteran’s claimed stressor incidents/events of SCUD missile attacks and the incident in which he was reportedly attacked by an Iraqi prisoner who was shot during the altercation, and there was no evidence to support documentation of the claimed incidents/events. The Board also finds that the preponderance of the competent and credible evidence shows that the Veteran does not have a current diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a). The September 2001 Vet Center assessment and reports of VA compensation examinations and addendum opinions in May 2009, November 2009, October 2010, June 2011, December 2012, July 2013, and January 2021 reflect that the examiners all concluded that the Veteran does not have a current diagnosis of PTSD. Although some VA treatment providers have diagnosed rule out PTSD, or PTSD, these opinions are either based on factual inaccuracies (that the Veteran served in combat, or was held hostage at gunpoint), or were made without review of his service records. See, e.g., a July 2016 VA treatment note (psychologist diagnosed rule out PTSD, while noting that this diagnosis was only being presented as a “rule out,” since the Veteran’s military records were not available to him). He also diagnosed severe methamphetamine use disorder, severe cocaine use disorder, severe cannabis use disorder, recurrent major depressive disorder, and unspecified schizophrenia spectrum and other psychotic disorder. In December 2020, a psychologist diagnosed PTSD based on the Veteran's reports of two traumas, one in which a building he was in was under attack and a close friend of his died, and another in which another troop held him and some others hostage for several hours at gunpoint. The assessment was history of polysubstance abuse disorder, substance-induced psychosis, and suicidality. The psychologist noted that the Veteran endorsed PTSD symptoms secondary to military traumas and panic attacks. The Board finds that the December 2020 VA opinion has no probative value, as it is based solely on the Veteran's reported history of unverified in-service stressors that are not credible and are inconsistent with his service records and his prior statements regarding military service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “an opinion based upon an inaccurate factual premise has no probative value”); Kightly v. Brown, 6 Vet. App. 200 (1994). The Veteran has not previously reported these two stressors to treatment providers or examiners, or in his statements and testimony during the pendency of the appeal, and service treatment records and service personnel records do not document such events. Earlier treatment records reflect that the Veteran has provided conflicting statements regarding alleged in-service stressors. A December 2003 VA domiciliary treatment note reflects that the Veteran reported that during Desert Storm, he performed EPW capture, search, and confinement, and he enjoyed his job very much. On VA examination in May 2009, he said he served in combat during Desert Storm, and he had to subdue a violent American soldier who went berserk, but denied other significant traumatic stressors. On VA examination in October 2010, the examiner noted that the Veteran’s medical records showed that he reported seeing enemy combatants dying, but he currently denied such incidents. The Board finds that the stressors recently reported in December 2020 are not consistent with the places, types, and circumstances of the Veteran's service as a guard at an EPW camp in Saudi Arabia. Thus, the Veteran's lay statements alone do not establish the occurrence of these claimed in-service stressors. Moreover, the January 2021 VA examiner reviewed the claims file and service records and indicated that while Veteran reported various events in service, the service records are silent for any events that would qualify for PTSD, the Veteran’s medical records are riddled with inconsistencies in his history, and the fact that he was using substances off and on throughout the years made his current statements regarding events in service inaccurate. The Board finds that the January 2021 VA medical opinion is more probative than that of the December 2020 VA treatment provider 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). After considering the evidence of record, the Board finds that the Veteran does not have a verified or verifiable stressor, or a credible diagnosis based on such. In the absence of a verified or verifiable stressor event which is the cornerstone of a PTSD claim, service connection for PTSD must be denied. 38 C.F.R. § 3.304 (f). Equally as significant is the fact that the weight of the evidence does not show that the Veteran has been diagnosed by the most probative evidence in this case with PTSD based on a verified in-service stressor. With regard to the claim of service connection for a psychiatric disorder other than PTSD, there are medical opinions weighing for and against the claim. As the conflicting medical opinions turn on the Veteran’s reported history of stressors and symptomatology, the Board must first assess the credibility of such history. While the Veteran reports he suffered from a psychiatric disorder during and since service, the Board finds such assertion is not reliable or persuasive. The Veteran’s statements are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing depression, excessive worry, loss of memory, frequent trouble sleeping, and nervous trouble of any sort in a March 1991 report of medical history. In a March 1991 Southwest Asia (SWA) Demobilization/ Redeployment Medical Evaluation, the Veteran denied incurring any diseases or injuries in SWA, denied nightmares, trouble sleeping, recurring thoughts about Desert Shield/Storm, and denied exposure to chemical warfare or germ warfare. Service treatment records are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder, and his psychiatric system was normal on medical examination in March 1991. A July 2002 VA substance abuse treatment note reflects that the Veteran reported that he began smoking marijuana at age 11 and had used it regularly throughout his life, with a two-year abstinence. He began using cocaine at age 16 and by the age of 20 was using it heavily. He tried most other drugs and reportedly found Adderall for ADD to be a good high for him. An August 2003 VA nursing admission assessment reflects that the Veteran reported that he often had periods of depression in his life, and had prior hospitalizations. He also reported using methamphetamines daily for the previous two months, and said he became paranoid and had both auditory and visual hallucinations when he used drugs. The diagnostic assessment was depression with suicidal ideation. On VA examination in March 2009, the Veteran reported that his depression symptoms began in approximately 1995 or 1996. Thus, the concurrent medical records contradict the Veteran’s more recent contentions regarding service incurrence of a psychiatric disorder, and reduce the credibility of his current contentions. Although the Veteran contends that he has a psychiatric disorder to include ADD/ADHD due to Sarin gas exposure in service, and a September 2000 letter from the Department of Defense (DoD) stated that if he was with his unit at the time of the demolition at a large munitions depot at Khamisiyah, in southern Iraq in March 10-13, 1991, he may have been exposed to very low levels of a chemical agent for a brief period of time, the Veteran is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The DoD indicated that that based on current medical evidence and ongoing research, there is no indication that any long-term health effects would be expected from the brief, low-level exposure to chemical agents that may have occurred near Khamisiyah. A fact sheet enclosed with the letter stated that some Iraqi rockets stored at the depot contained the chemical warfare agents Sarin and Cyclosarin, and some of these rockets may have been among those destroyed during the demolition, but the analysis showed that the exposure levels would have been too low to activate chemical alarms or to cause any symptoms where U.S. troops were located. Evidence in favor of the claim includes a September 2001 Vet Center intake assessment by a clinical social worker in which the examiner diagnosed Gulf War Syndrome, adult ADD, and major depression secondary to the other diagnoses. The examiner stated that based on the information provided by the Veteran, it would appear that prior to his service in Operation Desert Storm, he had a relatively normal and productive life, but after his return, his life became increasingly problematic and nonproductive. The Board finds that the probative value of this opinion is reduced as the examiner based his opinion solely on the Veteran's reported history and did not review his service records or post-service treatment records, or provide a supporting rationale. Additional evidence in favor of the claim includes a May 2009 VA opinion in which the examiner (Dr. K.) opined that it is at least as likely as not that the Veteran's depression NOS is due to chronic pain and medical problems. He had a long history of marijuana dependence, but he had been sober for the previous two months with no residual impairment or other substance abuse noted, and reported periods of severe depression, for example in about 1995 or 1996. This medical opinion was provided without review of the claims file. In November 2009, Dr. K. opined that after review of the claims file, it was likely that the Veteran also had adult ADHD and that since his last VA examination he had returned to self-medicating with marijuana. A VA examination performed by the same examiner in October 2010 noted that the Veteran reported that he had a manic-like episode in about 1992 “while on active duty,” and said he was arrested for his behavior during Hurricane Andrew in 1992. Dr. K. opined that it was likely that the Veteran had a bipolar disorder, currently hypomanic, along with marijuana dependence to self-medicate his mood disorder, and that based on the Veteran’s self-report, it was more likely than not that his bipolar disorder was first manifest while he was on active duty and contributed to behavior problems in his early separation from the military. The Board notes that the Veteran was not on active duty in 1992, and finds that this medical opinion has no probative value as it is based solely on the Veteran’s inaccurate reported history, which is contradicted by the other evidence of record, including the Veteran’s statements made to medical providers. See Reonal, supra. The Veteran’s service treatment records and post-service medical records do not reflect that a psychiatric disorder manifested in the line of duty during a period of ACDUTRA or INACDUTRA. Essentially, as noted in the Board’s November 2011 remand, the May 2009 and October 2009 opinions are partially inadequate, lacking in rationale and containing statements patently inconsistent with the evidence record. See also June 2012 Board remand. Evidence weighing against the claim includes the December 2012 VA examination, in which a different VA psychologist diagnosed cannabis dependence NOS, amphetamine dependence in remission, and personality disorder NOS with schizoid, schizotypal and antisocial features. The examiner opined that based upon the patient’s history, presentation, and claims file, that the above diagnoses had all been present since adolescence and had progressed normally without indication of aggravation. The examiner also stated that he met the criteria for a diagnosis of amphetamine dependence in remission with no current symptoms. The rationale was that there is no evidence to link any of these diagnoses to his military experiences or stressors nor is there evidence of aggravation. His level of functioning did not appear to have changed significantly since high school. In July 2013, the same examiner opined that the Veteran's personality disorder NOS and cannabis dependence had progressed normally since adolescence, and neither diagnosis is related to, caused by, or aggravated by his military experience or stressors. Evidence weighing against the claim also includes the January 2021 VA examination. The examiner summarized the Veteran's medical history and opined that it is less likely than not that there are any mental health conditions that developed as a result of service. The rationale was that service treatment records do not contain complaints, treatment, or diagnosis for these conditions, and that although VA medical records showed treatment for mental conditions, there was no link between the claimed medical condition and military service as his stressors were not verified. The Veteran had been seen on multiple medications for symptoms and for situational stress such as loss of home and employment, and there was currently no consistent mental health diagnosis that is linked concretely to his time in service. The examiner also opined that it is less likely than not that the Veteran's current psychiatric disorders have been caused or permanently worsened by a service-connected disability (currently generalized arthralgia, muscle pain and tinnitus). The Board finds that the January 2021 VA medical opinion is highly 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). Although the Veteran has a well-documented history of being diagnosed with a personality disorder, personality disorders are not diseases or injuries for VA compensation purposes - i.e., they are not a condition that may be service connected. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. The Board has considered post-service treatment records that include diagnoses related to substance abuse. However, disabilities resulting from a person’s own misconduct, including abuse of alcohol or drugs, are not disabilities for which compensation is payable. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (m), 3.301(d); Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The preponderance of the evidence does not show that a psychiatric disorder was incurred or aggravated during active service, or in the line of duty during a period of ACDUTRA or INACDUTRA while ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or while performing “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (21), (22)(C); 38 C.F.R. § 3.1 (a); Allen, supra. For all the reasons described above, the Board concludes that while the Veteran has a current diagnosis of an acquired psychiatric disorder, the preponderance of the evidence weighs against a finding that the current psychiatric disorders began during service or are otherwise related to service and/or caused or aggravated by his service-connected disabilities. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. KENNEDY Veterans Law Judge Board of Veterans’ Appeals K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED