Citation Nr: 21025341 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-36 796 DATE: April 27, 2021 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and unspecified schizophrenia spectrum is granted. Entitlement to service connection for substance abuse as secondary to service-connected psychiatric disorder is granted. Entitlement to service connection for Meniere's disease is granted. Entitlement to service connection for bilateral hearing loss as secondary to service-connected Meniere's disease is granted. Entitlement to service connection for impotence as secondary to service-connected acquired psychiatric disorder is granted. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a confirmed diagnosis of PTSD. 2. The evidence is at least in equipoise as to whether an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and unspecified schizophrenia spectrum, is related to the Veteran’s military service. 3. The Veteran’s substance abuse is caused or aggravated by his now service-connected acquired psychiatric disorder. 4. The preponderance of the evidence demonstrates that the Veteran’s Meniere’s disease had its onset during active duty. 5. The Veteran’s bilateral hearing loss is caused or aggravated by his now service-connected Meniere's disease. 6. The Veteran’s impotence is caused or aggravated by his now service-connected acquired psychiatric disorder. 7. The Veteran’s impotence results in the loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and unspecified schizophrenia spectrum have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for substance abuse as secondary to service-connected psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 4. The criteria for service connection for Meniere's disease have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The criteria for service connection for bilateral hearing loss as secondary to service-connected Meniere's disease have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 6. The criteria for service connection for impotence as secondary to service-connected acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 7. The criteria for SMC for the loss of a creative organ have been met. 38 U.S.C. §§ 1114 (s), 5101, 5103, 5103A, 5107 (2018); 38 C.F.R. § 3.350 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1976 to July 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in November 2018 and September 2020 for additional development. 1. Entitlement to service connection for PTSD is denied. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include unspecified depressive disorder and unspecified schizophrenia spectrum, is granted. The Veteran seeks service connection for an acquired psychiatric disorder, variously claimed as PTSD, depression, and anxiety. The Board has recharacterized the Veteran’s appeal to consider all possible psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1, (2009); see also 38 C.F.R. § 3.304 (f). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Claims for service connection for PTSD have a distinct set of criteria. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304. Turning to the evidence of record, service treatment records are silent for complaints of, or treatment for, a psychiatric disorder. Post-service, a March 1989 counseling note indicated that the Veteran, diagnosed with cocaine dependence, desired counseling for a change in jobs. A February 1990 treatment record noted that the Veteran presented for full treatment of cocaine dependence. He began snorting cocaine nine years prior. He had quit smoking crack one week prior and reported feeling depressed. He also reported that he used marijuana and speed while in the Army in Korea. He stated that he was depressed and homesick in Korea. A March 2010 VA mental health note indicated that the Veteran was followed by the substance abuse treatment clinic (SATC) with diagnoses of cocaine dependence, rule out PTSD, substance induced mood disorder versus depression, and nicotine dependence. The Veteran reported his mood was somewhat better since starting the citalopram. He was hypervigilant. He was not sleeping well. He had low energy. His last use of cocaine was about three weeks prior. A July 2010 VA mental health note indicated that the Veteran was reportedly paranoid. He did not go outside because he was afraid someone would hurt him. He suggested that he might have self-medicated in the past. He reported that he enjoyed things less than he used to and had been isolating. The examiner suspected secondary gain or exaggeration with the Veteran and recommended a full examination to address the possibility. The examiner assessed cocaine dependence and substance-induced mood disorder versus depression NOS (not otherwise specified). A September 2010 psychological evaluation noted that the Veteran was referred for clarification of psychiatric diagnosis and validity of self-reported symptoms. The Veteran’s treatment team noted that the Veteran tended to report different symptoms in each session. At the time of the evaluation, the Veteran had been abstinent from substances of abuse for eight months. The Veteran reported numerous psychiatric symptoms, but was at times self-contradictory. On clinical interview, he endorsed current depressive symptoms including frequently depressed mood, anhedonia, increased need for sleep, increased appetite with 40-pound weight gain over the past 7 months, thoughts of death, feelings of worthlessness, and difficulty concentrating. These symptoms have been present for one year, though not while he was using cocaine. He indicated that he had had many previous major depressive episodes also, too numerous to count. Responses on a structured interview were strongly indicative of deliberate feigning or exaggeration of psychiatric symptoms. In particular, he endorsed a very high number of everyday problems and symptoms that are not always associated with mental illness, demonstrated a strong tendency to endorse psychiatric problems indiscriminately, and endorsed an unusually high number of symptoms of extreme or unbearable severity. On the whole, this combination of elevated scores is characteristic of individuals who are feigning a mental disorder, and is rarely seen in patients responding truthfully. Responses on the MMPI-2-RF showed some evidence of responding to items as “true” somewhat indiscriminately. Such profiles typically reflect a non-cooperative test-taking approach, and seriously call into question the validity of the rest of the profile. Within this context, responses were also suggestive of overreporting of psychological dysfunction. The rest of the protocol was thus not considered interpretable. The examiner stated that the results did not rule out the possibility of genuine Axis I pathology, but did indicate that the Veteran’s self-reported symptoms could not be considered valid. Further, the Veteran did not meet the diagnostic criteria for PTSD, panic disorder, generalized anxiety disorder, psychotic disorder, or bipolar spectrum disorder. The examiner acknowledged that some of the depressive symptoms that he reports may be genuine, but that his response bias precluded definitive determination of their presence or severity. In a January 2011 statement, the Veteran stated that he was sent to Korea after reports of soldiers being injured in the demilitarized zone. He was on high alert and had to patrol the fence line daily and nightly. He cried every night. Being so young and afraid, he reported that he began to use drugs every day. The drugs made things better. He also reported he suffered from a recurrent sexually transmitted disease. He noted that he became isolated and the depression “began.” The pressure subsided in 1978, but his drug use continued. In March 2015, the Veteran submitted lay statements from his mother, brother, and sister. His family members noted a change in his behavior after returning from the Army. He tended to isolate himself and kept doing drugs. He was fired from many jobs and was in and out of jail and drug treatment centers. An April 2015 VA mental health substance abuse treatment clinic diagnostic assessment noted that the Veteran endorsed significant paranoia, depressed mood, disturbed sleep, weight gain, poor concentration, low energy, irritability, hopelessness, and feeling fidgety. He denied suicidal ideation and history of attempts, but has had thoughts of “I [would] rather be dead than feeling this way.” A July 2015 VA mental health telephone encounter note indicated that the Veteran reported feeling depressed and mildly paranoid. He had some anxiety. His energy level was low. The Veteran had not used alcohol or cocaine in about a month. An August 2015 VA mental health note indicated that the Veteran was not sleeping well and did not have motivation or energy to do anything. He felt tearful at times and his mood was depressed. The examiner stated that diagnoses were “unclear; could be related to substance use and/or depression. Not consistent with mania or PTSD presentation. Unclear if secondary gain is a component.” In September 2015, the Veteran underwent a private psychological assessment. The examiner provided DSM-5 diagnoses of unspecified depressive disorder and unspecified schizophrenia spectrum and other psychotic disorder. The Veteran reported auditory and visual hallucinations and delusions consisting of hearing his name called and sounds of a horn and seeing shadow movement where he double checks and no one is present which he describes as a “sense of disbelief.” He also thought that someone was going to sneak up and hurt him. He suffered from chronic sleep impairment including insomnia and broken sleep, even with medication. He described difficulty establishing and maintaining relationships, difficulty in adapting to stressful circumstances including work, disturbances of motivation and mood, near-continuous panic and depression affecting his ability to function effectively, and intermittent inability to perform activities of daily living including maintenance of personal hygiene. He stated he was worthless and helpless. He described self-medicating with drugs which resulted in several inpatient and outpatient chemical dependency treatment programs. The examiner opined that the Veteran’s diagnoses more likely than not began in military service, continues uninterrupted to the present and prevents him from maintaining substantially gainful employment. As rationale, the examiner discussed the February 1990 evaluation and VA treatment records from 2010-2015. The examiner stated that the treatment records noted that the Veteran was dealing with anxiety and depressive symptoms, feeling on edge, hypervigilance, significant paranoia, and difficulty being in crowds “which clearly is distressing and impacting his quality of life.” The examiner also acknowledged that the Veteran was evaluated for PTSD and found to be malingering. The examiner cited medical literature supporting the emergence of mental health symptoms within active duty servicemen, as well as empirically validated evidence supporting a “crucial link” that vulnerable individuals experience stress which precipitates schizophrenia. The examiner further noted that research indicates that some psychiatric diagnoses, including mood disorders and depression, lead to occupational dysfunction and poor work-related quality of life. Following a December 2017 VA mental health diagnostic assessment, the examiner provided a DSM-5 diagnosis of depression unspecified. Following a November 2020 VA examination, the examiner opined that the Veteran did not meet the criteria for a mental illness “at evaluation today.” The examiner noted that the Veteran has a history of malingering and noncompliance, which was evident on the current examination. In weighing the conflicting medical evidence of record, the examiner found the September 2010 report to be more probative, noting that mental health notes from May 2015 support the contention of malingering. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, service connection for an acquired psychiatric disorder other than PTSD is warranted. In this case, the evidence does not demonstrate that the Veteran has a full and valid PTSD diagnosis. VA treatment records ruled out PTSD, and the September 2015 positive opinion does not include a diagnosis of PTSD. Finally, there is no indication in the record of a valid stressor. See, e.g., May 2011 VA memorandum. However, the evidence does reflect current diagnoses of unspecified depressive disorder and unspecified schizophrenia spectrum. See September 2015 private psychological assessment. Although the VA examiners have noted a history of malingering, the September 2010 examiner could not rule out the Veteran’s depressive symptoms. Further, the Veteran has presented with symptoms of depression throughout the appeal period. Additionally, the evidence is at least in equipoise as to whether his psychiatric disorder is related to active duty. As noted above, the Veteran and his family members have reported that his psychiatric symptoms began during or after his service in Korea. In weighing the probative value of the conflicting medical evidence, the Board notes that the November 2020 opinion did not address the diagnoses of record throughout the appeal period, and only found that the Veteran did not have any mental health diagnoses on current evaluation. Therefore, it has lesser probative value. In contrast, the September 2015 examiner’s positive opinion discussed all the evidence of record, including the evidence of prior malingering. The examiner based her opinion on the examination, claims file, and relevant medical literature. Consequently, it is probative evidence in support of the Veteran’s claim. Based on the foregoing, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection for an acquired psychiatric disorder other than PTSD is warranted. 3. Entitlement to service connection for substance abuse as secondary to service-connected psychiatric disorder is granted. The Veteran asserts that his substance abuse disorder began during service as a means of coping with the extreme stress he was under. Service connection may not be granted for drug dependence on the basis of in-service incurrence or aggravation. See 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. § 3.301. Nevertheless, service connection may be established for drug dependence on a secondary basis. Service connection on a secondary basis may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence enough to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). First, there is evidence of a diagnosed substance use disorder. VA treatment records throughout the appellate period include diagnoses of cocaine dependence, cannabis dependence, and opioid dependence. Second, there is sufficient evidence of record to demonstrate that the Veteran’s substance use disorder was caused or aggravated by his service-connected acquired psychiatric disorder. Treatment records dated twenty years prior to the Veteran’s 2010 claim for compensation note that the Veteran reported using drugs in the Army after being depressed in Korea. Various statements from the Veteran indicate that the Veteran used drugs as a way to cope with his psychiatric symptoms. Further, VA medical professionals have diagnosed substance-induced mood disorder following various mental health consultations. As such, probative medical evidence indicates that a substance use disorder was caused or aggravated by the now service-connected acquired psychiatric disorder. The claim is granted. 4. Entitlement to service connection for Meniere's disease is granted. Following a September 2019 VA examination, the examiner opined that the Veteran’s diagnosed Meniere’s disease was at least as likely as not incurred in or caused by service. The examiner discussed the relevant evidence of record and noted an in-service onset and continuous treatment since service. The Board considers this opinion to be probative evidence in support of the Veteran’s claim. Further, there is no adequate medical nexus evidence to the contrary. As such, a preponderance of the evidence demonstrates that the Veteran’s Meniere’s disease is etiologically related to active duty. The claim is granted. 5. Entitlement to service connection for bilateral hearing loss as secondary to service-connected Meniere's disease is granted. Following a September 2019 VA examination, the examiner opined that the Veteran’s diagnosed bilateral hearing loss is at least as likely as not proximately due to or the result of the Veteran’s Meniere’s disease. The examiner reasoned that hearing loss is a symptom of Meniere’s disease which is at least as likely as not related to hearing loss in this case. The examiner further noted a 2013 audiological examination report which showed left hearing loss consistent with Meniere’s disease. The Board considers this opinion to be probative evidence in support of the Veteran’s claim. Further, there is no adequate medical nexus evidence to the contrary. As such, a preponderance of the evidence demonstrates that the Veteran’s bilateral hearing loss is caused or aggravated by his service-connected Meniere’s disease. The claim is granted. 6. Entitlement to service connection for impotence as secondary to service-connected acquired psychiatric disorder is granted. Following a September 2019 VA examination, the examiner opined that the Veteran’s diagnosed impotence was at least as likely as not proximately due to or the result of the Veteran’s psychiatric disorder. The examiner noted that the impotence began subsequent to the psychiatric disorder and found that it is the direct result of the psychiatric disorder. The examiner further cited medical literature in support of her opinion. The Board considers this opinion to be probative evidence in support of the Veteran’s claim. Further, there is no adequate medical nexus evidence to the contrary. As such, a preponderance of the evidence demonstrates that the Veteran’s impotence is caused or aggravated by his service-connected acquired psychiatric disorder. The claim is granted. 7. Entitlement to SMC based on loss of use of a creative organ is granted. Because the Veteran is service-connected for impotence, the Board also grants entitlement to SMC for loss of use of a creative organ. See 38 C.F.R. § 3.350. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to service-connected disability is remanded. By this decision, the Veteran is in receipt of service connection for impotence. A September 2019 VA examination report noted that the “suspected cause” of the Veteran’s impotence was hypertension. As service connection may be awarded for a disability that is “aggravated by” a service-connected disability, remand is warranted to determine whether the Veteran’s hypertension is caused or aggravated by the Veteran’s service-connected impotence. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the September 2019 VA examiner (or another suitably qualified clinician, if unavailable) regarding the Veteran’s claimed hypertension. After review of the claims file, the examiner must opine as to whether the Veteran’s hypertension is caused or aggravated by the Veteran’s service-connected impotence, to include any medications taken to treat the Veteran’s impotence. A complete rationale should be provided. 2. Then, readjudicate the claim. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. Richard Kettler Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.