Citation Nr: 21025593 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-34 964 DATE: April 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is denied. FINDING OF FACT 1. The Veteran does not have posttraumatic stress disorder. 2. An acquired psychiatric disorder did not manifest during service and is not otherwise attributable to service. 3. A personality disorder and a substance abuse disorder have been identified. CONCLUSION OF LAW 1. An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304 (f), 4.125. 2. Personality disorders are not considered a disease or injury for purposes of VA compensation. 38 C.F.R. §§ 3.303, 4.9, 4.127. 3. A substance abuse disorder is not secondary to, or caused by, a service-connected disease or injury. 38 C.F.R. §§ 3.301, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to June 1977. He was discharged for failure to meet physical standards. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision. The Board remanded this matter in a November 2019 decision to send the Veteran a notification letter that satisfied the requirements of 38 C.F.R. § 3.304 (f)(5) and to provide the Veteran a VA examination and opinion to determine the existence and etiology of any acquired psychiatric disorder. review of the record shows that development letters were mailed to the Veteran and his attorney in April 2020 and July 2020. A VA examination and opinion were obtained in November 2020. The Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for an acquired psychiatric disorder, including PTSD. The Veteran asserts he experienced personal assaults, including sexual trauma, while in service and now has posttraumatic stress disorder (PTSD) due to those traumas. He also contends that an alcohol abuse disorder is related to PTSD. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, 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” – the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition 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). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). “[U]nder 38 C.F.R. § 3.304 (f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” Menegassi v. Shinseki, 638 F.3d 1379, 1382 (2011). A veteran need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, service treatment records contain no indication of PTSD. The Veteran denied depression and nervous trouble at separation. The June 1977 discharge examination shows a clinically normal psychiatric evaluation. He denied any history of depression, excessive worry, or nervous trouble in the June 1977 report of medical history. The Board notes that the Veteran was discharged for failure to meet procurement medical fitness standards due to migraine headaches that preexisted his service. The earliest substantive post-service VA treatment records date from January 2001 and show the Veteran reported alcohol abuse for years. A March 2001 primary care note reflects diagnoses of alcohol dependence NEC and depressive disorder NEC and that the Veteran was referred to counselling. The last notation of depressive disorder NEC is in a December 2001 urgent care note. The Veteran entered in-patient alcohol detoxification treatment in February 2002. He reported a 15-year history of alcohol abuse and reported having diagnosis of paranoid schizophrenia and that he used to hear voices, though he had not in approximately four years. His legal history included five incarcerations for automobile theft. He denied any depressive symptoms. At discharge, the only relevant diagnosis was alcohol dependance. He was admitted to in-patient alcohol detoxification treatment in February 2009. He reported that his drinking began in his early teenage years and did not endorse any mood, psychotic, or anxiety symptoms at the time. He reported at least 25 arrests for various reasons which include auto stripping and weapon charges, that his longest incarceration had been for four years. He was assessed with alcohol dependence and personality disorder, NOS. VA received a statement in support of claim for service connection for PTSD in June 2016. The Veteran reported that during basic training, his drill instructor would press the platoon sigma into the center of his hand and until it bled and state that the barracks better be in order by morning. He also reported that there were occasions where the drill instructor would grab the Veteran’s groins and squeeze them together while making his statement. The Veteran reported that he had been self-medicating with alcohol since. He filed his claim for service connection for PTSD and alcohol addiction in August 2016. Through this time, the Veteran’s treatment record show numerous PTSD and depression screens, with most screens being negative. The first documented report of the Veteran’s MST stressors in the VA treatment records is from December 2016 when the Veteran was mandated to substance abuse treatment by the Niagara County Veterans Court. The treating social worker noted the reported trauma in military, MST when a drill instructor grabbed his genitals and applied painful pressure. The Veteran expressed interest in MST consult, which was scheduled. He had a mental health consultation in January 2017 to discuss MST related care needs. He reported being physically and sexually violated by his drill instructor. On one occasion he was held after the rest of his unit was released from drill, the drill instructor proceeded to berate him while holding his testicles, and the drill instructor proceeded to squeeze his genitals in order to cause pain. The Veteran reported that he did not react at the time to this but felt embarrassed and naturally was experiencing pain. On another occasion, the drill instructor held a lapel pin into the palm of the Veteran’s hand, pressing pin into skin until he was bleeding. At this time, he reports minimal symptoms related to this, but does think of the experience of being violated if he sees a similar scenario on TV. He has had significant issues with authority which are likely related to this. He was referred for further assessment in January 2017, where he reported his historical legal and substance abuse concerns are related to the MST as he self-medicates utilizing alcohol as a sleep aid, and that he struggles with authority due to the MST. He endorsed mild depressive symptoms although he maintained they were situational. Based on a PCL-5 self-report checklist, the social worker determined the Veteran endorsed trauma-related symptoms due to event of MST but did not meet full-symptom criteria list for PTSD. A February 2017 addendum note states that the Veteran did not endorse symptom criteria for PTSD. At a February 2017 psychiatry consultation with a VA psychologist, the Veteran reported the same two in-service events and that he had begun drinking in his early teenage years. The diagnostic impression was recorded as “ETOH Use Disorder H/O of MST PTSD.” The same diagnostic impression is recorded in subsequent VA treatment records, the most recent record being available a December 2020 psychiatry note. The Veteran testified at a Board hearing in August 2019. He reported the same two stressors, and that he had experienced nightmares due to the in-service stressor events and he denied symptoms of PTSD and depression during VA treatments and screenings because he did not want to talk about it at the time. He reported that he began drinking to deal with the traumatic events, which also caused problems with authority figures. He also denied drinking prior to service. The Board remanded the claim in November 2019, and the Veteran was afforded a VA examination for PTSD in November 2020. He reported multiple arrests and at least six periods of incarceration for repeated offenses. He stated he was scared to tell people of his MST and frightened of authority figures. He reported that he sleeps eight hours per night with nightmares and sweats, and that television or news reports of sexual abuse of teens is upsetting and revives memories of his own MST. He continued to drink heavily out of habit and as self-medication. Regarding stressors, the Veteran reported his drill instructor was making him a platoon leader and came into his barracks in civilian clothes, walked up to veteran after dismissing everyone else, grabbed his groin and squeezed it hard, and pressed an insignia pin into his hand. He stated he did not report this to anyone, since leaving the military he has been angry and wanting to fight, and the events had always been on his mind since discharge. The examiner noted the stressors were adequate to support a diagnosis of PTSD and were related to in-service personal assault. Under the DSM-5 PTSD diagnostic criteria, the Veteran had symptoms under Criteria A, B, D, E, and H. No symptoms were present under Criteria C, F, and G. The Veteran reported suspiciousness, chronic sleep impairment, impaired judgment, and difficulty adapting to stressful circumstances. The examiner diagnosed antisocial personality disorder and alcohol use disorder, noting that while the Veteran clearly has traits of PTSD, his history and presentation was more consistent with antisocial personality disorder. The examiner determined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the claims file is replete with references to the Veteran denying PTSD and MST type events and symptoms through 2015, and the first note located which reference his MST allegation is from 2016, but even then, he continued to deny PTSD symptoms/experiences. The examiner explained that the Veteran appears to suffer from Antisocial Personality Disorder (ASD) unrelated to military service, as evidence by his account of 25+ post-military arrests and multiple incarcerations for both multiple and repeat crimes, but no such characteristics evidenced during military service. While this disorder shares some symptoms with PTSD, the Veteran has consistently denied PTSD in previous interviews. He did not report an MST prior to 2016, and there are no corroborative markers related to his alleged MST that would lend clarity to the allegation. It is not likely that his ASD is related to his military experiences, or even the alleged, uncorroborated MST. After reviewing the record, the Board concludes the most probative evidence establishes the Veteran does not have PTSD, or any other current acquired psychiatric disorder for which service connection may be granted. At the time of the Board’s November 2019 remand, there had been suggestions in the record that the Veteran had PTSD. The Board remanded in part for a VA examination on the matter of whether the Veteran had PTSD. The November 2020 VA examination report and opinions clearly indicate that the Veteran did not warrant a diagnosis of PTSD under DSM-5. The Veteran was evaluated under its diagnostic criteria, and although the examiner noted the Veteran had traits of PTSD, the examiner concluded the Veteran’s history and presentation were more consistent with antisocial personality disorder. Pertinently, PTSD Diagnostic Criteria C, F, and G were missing. Based on the information obtained on examination, the examiner concluded the Veteran does not have PTSD. The record has been thoroughly reviewed, including all VA treatment records, which include PTSD. The preponderance of the evidence is against a finding that the Veteran has had PTSD at any time during the appeal. As noted above, the VA treatment records include an impression of “H/O of MST PTSD” provided by a VA psychologist in February 2017. In determining whether the Veteran has a diagnosis of PTSD, the Board acknowledges that mental health professionals are experts, are presumed to know the DSM requirements applicable to their practice, and to have taken the DSM requirements into account in providing a PTSD diagnosis. As such, a PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, we note that the January 2017 VA assessment indicated that the Veteran did not meet the criteria for PTSD. There was little explanation provided by the February 2017 psychologist in rendering the “H/O of MST PTSD” impression. The November 2020 VA examination, also completed by a psychologist, is a much more thorough evaluation of the Veteran and is far more detailed than the February 2017 impression. It is also somewhat unclear whether “H/O of MST PTSD” means the Veteran currently has PTSD. To the extent that clinical records suggest a diagnosis of PTSD, such assessment is outweighed by the more thorough and probative PTSD assessment provided in the November 2020 VA examination report. Thus, the Board finds that the evidence suggesting the Veteran has PTSD is outweighed by the evidence that he does not currently meet the requirements for a DSM-5 diagnosis of PTSD. Furthermore, there are no currently diagnosed acquired psychiatric disorders for which service connection can be granted. Although the Veteran has reported a prior diagnosis of paranoid schizophrenia and that he was treated for auditory hallucinations during one of his incarcerations, there have been no such diagnoses or symptoms during the period on appeal. We acknowledge that the Veteran was previously diagnosed with a depressive disorder. However, this diagnosis last appeared in VA treatment records in December 2001, many years prior to the period relevant to the instant appeal. There is no indication that he is currently diagnosed with a depressive disorder, nor does he contend otherwise. Although he reported treatments for anxiety during the August 2019 Board hearing, the record is silent regarding any diagnosed anxiety disorder. There is otherwise no indication in the medical records available that the Veteran has been diagnosed with any other acquired psychiatric disorder during the period relevant to the appeal. The November 2020 examiner diagnosed antisocial personality disorder and alcohol use disorder. Personality disorders are not diseases or injuries within the meaning of the law. 38 C.F.R. §§ 3.303, 4.9, 4.127. VA disability compensation benefits may not be awarded for disability related to the abuse of alcohol or drugs on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301. There is no evidence of record that the Veteran’s alcohol abuse disorder is secondary to, or caused by, a service-connected disease or injury. 38 C.F.R. §§ 3.301, 3.310; Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). By law, compensation cannot be award for these disorders. In sum, the Veteran does not currently have PTSD, or another acquired psychiatric disorder, that is related to his service. Compensation cannot be awarded for antisocial personality disorder as a matter of law, and the Veteran’s alcohol use disorder is not secondary to or caused by a service-connected disability. The claim for an acquired psychiatric disorder, to include PTSD, is therefore denied. The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.