Citation Nr: 21027964 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-34 491 DATE: May 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT At no time during or prior to the pendency of the claim did the Veteran have a current diagnosis of PTSD or an acquired psychiatric disorder eligible for VA benefits. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 2008 to July 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a VA Regional Office (RO). Previously, this claim was before the Board in September 2019 in which a remand was ordered to obtain outstanding VA treatment records and to afford the Veteran an addendum VA medical opinion for her claims. Specifically, the examiner was asked to comment on the February 14, 2012 memorandum that described PTSD-like symptoms, a September 18, 2015 reported diagnosis of "other trauma-based disorder", as well as August 2019 records showing treatment for chronic PTSD. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Generally, the evidence 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. 38C.F.R. §3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67(Fed. Cir. 2004). Service connection for PTSD 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). When the evidence does not establish that a Veteran is a combat Veteran, her assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, her reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. §3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). However, "if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor," the Veteran's lay testimony, if consistent with the circumstances of service, will be sufficient to establish the in-service stressor in the absence of "clear and convincing evidence to the contrary." 38 C.F.R. § 3.304 (f)(3). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. The Veteran asserts that she has an acquired psychiatric disorder, including PTSD, due to service in Iraq from January 2010 to July 2010. Specifically, she contends that during service she was a "first responder" who saw a man dead at a scene she responded to, experienced mortar fire within 100 feet of her "chew", knowledge of a fellow service member and friend almost dying from a grenade explosion, and worked with inmates that were terrorists. However, as will be discussed in greater detail below, the Board finds service connection for an acquired psychiatric disorder, to include PTSD is not warranted. A review of the Veteran's personnel records indicates that she was deployed to the Persian Gulf and received Hostile Fire/Imminent Danger Pay between February 1, 2020 and September 30, 2020. Service treatment records indicate the Veteran had no prior history with psychiatric conditions as indicated on her entrance examination from January 2008. During service, she reported trouble sleeping, snoring and increased alcohol consumption. The Veteran tested negative for PTSD and depression in a post-deployment health assessment dated July 2010. It also documented that the Veteran denied encountering dead bodies or seeing people killed or wounded, engaging in direct combat, or feeling in great danger of being killed. In December 2011, the Veteran attended a substance abuse seminar for reported binge drinking. Towards the end of her military service, the Veteran underwent a court martial in 2012 for marijuana use in which she was incarcerated for six months, received a reduction of rank, and was discharged from the military "under honorable conditions". After service, the Veteran was afforded a VA examination in August 2015. It was determined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5 criteria rather the Veteran was diagnosed with alcohol use disorder which was deemed "in early remission". The examiner noted that the Veteran did not have any other mental disorder nor a diagnosis of a traumatic brain injury (TBI). The examiner noted STRs containing reports of sleep disturbances dated in July 2012 which were indicative of obstructive sleep apnea. Another VA treatment note from July 2012 documented that the Veteran denied any anxiety or depression. The examiner remarked that he could not find any other documented reports of mental health difficulties related to emotional disturbances, anxiety, or other psychiatric difficulty during the military. Screenings for mental health concerns from April 2013, October 2014, and August 2015 were negative for depression and PTSD. Upon conducting PTSD diagnostic questioning, the examiner noted that the Veteran met criteria A and B for witnessing, in person, traumatic events with recurrent, involuntary, and intrusive memories. However, all other criteria under the DSM-5, were not met. The examiner noted that the Veteran reports dissatisfaction with her current career, difficulty in her romantic relationship, and the residuals of her legal problems during the military. However, "her responses indicate that her reaction is within normal limits given her cultural context". As such, the examiner concluded, that the medical evidence of record does not indicate a diagnosis of PTSD or any other mental disorder under DSM-5, except substance abuse disorder. Following the Board's remand in September 2019, an addendum medical opinion was provided in November 2019 by the same VA examiner. Once more, the examiner found that the Veteran does not have a diagnosis of PTSD under the DSM-5 criteria, instead she has the sole mental health condition of alcohol use disorder. The examiner noted that her post deployment health assessment from July 2010 was negative for PTSD and depression. It also noted that the Veteran denied encountering dead bodies or feeling in great danger. It was further noted by the examiner, that the Veteran stated she had seen mental health providers once in the military in 2012. After service she sought treatment once or twice in 2014 and 2015 and most recently began receiving more services in 2019. The examiner once again noted the Veteran's 2012 military court martial and noted a 2013 domestic dispute resulting in a citation. The Veteran reported to the examiner that during service she drank about three beers daily and endorsed drinking to blacking or passing out once monthly. After service, Veteran reported she had stopped drinking for almost three years before drinking again in 2016. Presently, she reported drinking eight glasses of vodka daily and denied illegal drug use. She further reported her mood was "flat" with a lack of motivation. She denied excessive worry but indicated having repeated "bad dreams". The examiner reported that the Veteran met criterion A for "directly experiencing [a] traumatic event" however, she did not meet any of the other criteria under the DSM-5 for a diagnosis of PTSD. As directed by the Board's September 2019 remand, the examiner reviewed the VA treatment records from September 18, 2015, and 2016. The examiner noted that this documentation found a diagnosis of "other trauma and stressor disorder" but the examiner reported that these records were still negative for documentation of a specific "Criteria A stressor consistent with PTSD/trauma disorder in the DSM-5 manual". The examiner also considered the August 23, 2019, note of a diagnosis of PTSD but remarked "the note was negative for assessment of PTSD". The examiner explained that other treatment record notes document inconsistent reporting by the Veteran. For instance, "recent treatment records note report of MST [military sexual trauma] as contributing to PTSD diagnosis, but the Veteran's submitted statements, previous DBQ evaluation, past treatment records, and today's evaluation was negative for MST". It was further explained that "the clinicians arrived at a diagnosis that was useful for clinical purposes, but which may not meet the full criteria for a diagnosis". In addition, the examiner noted that the Veteran recently completed clinical training at a VA hospital in the emergency room thus indicating "her occupational choices in health care does not support avoidance of her reported stressor of seeing injured during combat". Instead, the Veteran was noted as not reporting symptoms meeting "criterion B, C, D, or E of the magnitude or frequency to suggest PTSD or a trauma related disorder". While it was noted that she does report some intermittent mood fluctuations, none of those symptoms are related to her military service and are more likely related to her alcohol use. The examiner further opined that her sleep issues are related to her medical diagnosis of sleep apnea, of which she is currently service connected, and her alcohol usage. Therefore, the examiner opined "it is less likely than not that the Veteran has PTSD or other psychiatric conditions incurred in or caused by military service". In short, the preponderance of all the probative evidence of record indicates the Veteran does not have a currently diagnosed psychiatric condition conforming to the DSM-5 as required under 38 C.F.R. § 4.125. Thus, the first element of service connection has not been met and the claim must be denied. See also Martinez-Bodon v. Wilkie, 32 Vet.App. 393 (2020) (holding that although in some circumstances the Federal Circuit did not limit the definition of "disability" to pain, with respect to psychiatric disabilities VA has expressly limited compensation to disabilities conforming to a Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnosis and the Court lacks jurisdiction to review the Secretary's decision to require such a diagnosis as set out in the schedule of ratings); see also 38 C.F.R. § 4.125. The Board acknowledges the Veteran's statements that she has experienced psychiatric symptoms and is sincere in her belief that these are related to service. To the degree that the Veteran has reported that she has experienced a continuity of symptoms (or on-going manifestations) since separation from service, she is competent to report her observations and relate what she was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, a psychiatric disability must conform to a DSM-5 diagnosis and, as outlined by the November 2019 VA examiner, the Veteran does not meet the diagnostic criteria for PTSD or any other psychiatric diagnosis. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records and performing an extensive psychiatric evaluation. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). To the extent that the Veteran has been diagnosed with alcohol use disorder during the appeal period, the Board notes that direct service connection for a disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. Compensation cannot be awarded pursuant to 38 U.S.C. § 1110 and 38 U.S.C. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered willful misconduct. 38 C.F.R. §§ 3.301(c) (2), 3.301(c) (3). In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen, 237 F.3d 1368, 1376-77(Fed. Cir. 2001). (Continued on the next page) The Board finds that the preponderance of the evidence is against a finding that the Veteran has a currently diagnosed acquired psychiatric disorder, to include PTSD that is related to service; therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.