Citation Nr: 21028290 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-50 259A DATE: May 10, 2021 ORDER New and material evidence having been received, the reopening of service connection for a psychiatric disability, including claimed posttraumatic stress disorder (PTSD), is granted. Service connection for a psychiatric disability, including claimed PTSD, is denied. FINDINGS OF FACT 1. In the October 2014 decision, the Board denied service connection for an acquired psychiatric disability, to include PTSD based on personal assault, on the bases that the evidence did not show that the Veteran had a current PTSD diagnosis and other psychiatric diagnoses were shown to have clearly and unmistakably existed prior to service and were not aggravated by service. 2. Evidence received since the October 2014 Board decision relates to the previously unestablished fact of a current PTSD diagnosis. 3. The Veteran did not engage in combat with the enemy during active service and was not exposed to hostile military or terrorist activity during active service. 4. There was no psychiatric injury or disease, including no stressor event, during service. 5. The current personality disorder was not subject to superimposed disease or injury during service. CONCLUSIONS OF LAW 1. The October 2014 Board decision denying service connection for a psychiatric disability, to include PTSD based on personal assault, was final when issued. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen service connection for a psychiatric disability, including claimed PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a psychiatric disability, to include claimed PTSD, are not met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1985 to August 1985. This matter is on appeal from an April 2017 rating decision. In April 2020, the Veteran testified at a virtual Board hearing before the undersigned. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. New and Material Legal Authority Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156 (a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Shade, 24 Vet. App. at 118. 1. Reopening of Service Connection for a Psychiatric Disability is granted. In October 2014, the Board denied service connection for an acquired psychiatric disability, to include PTSD based on personal assault, on the bases that the evidence did not show that the Veteran had a current PTSD diagnosis and other psychiatric diagnoses were shown to have clearly and unmistakably existed prior to service and were not aggravated by service. In October 2014, the Veteran was notified of the Board's decision and provided notice of procedural and appellate rights. Because the Veteran did not appeal the October 2014 Board decision to the Court within 120 days of that notice, the Board decision was final when issued. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. After reviewing the evidence received since the October 2014 decision, the Board finds that it qualifies as new and material evidence to reopen service connection for a psychiatric disorder. An August 2017 private psychological evaluation report shows psychiatric diagnoses of MDD and chronic PTSD. In a September 2017 letter, the private psychologist who performed the August 2017 evaluation specifically opined that the Veteran has diagnoses of MDD and chronic PTSD due to his military experiences and reported assault at Fort Jackson. The additional evidence reflecting a psychiatric diagnosis of PTSD made by a competent mental health professional, as well as the medical opinion evidence suggesting a possible link between the current psychiatric disability and service, are new to the record, address the grounds for the prior denial, and raise a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a psychiatric disability, including claimed PTSD. See 38 C.F.R. § 3.156 (a). Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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 may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the Veteran has a personality disorder and does not have a current psychiatric disability, including no psychosis, the presumptive service connection provisions listed as a chronic disease under 38 C.F.R. § 3.303(b) are not applicable. 2. Service connection for a psychiatric disability, including claimed PTSD and MDD, is denied. The Veteran contends that the current psychiatric disability is related to the claimed in-service stressor event of having a female drill instructor shove the Veteran's weapon at him causing a facial injury (i.e., a personal assault). He also asserts that he experienced psychiatric symptoms during and since service but was not diagnosed with a mental disorder until approximately 1994 when he filed for Social Security disability. For PTSD claims 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 explained economic or social behavior changes. VA may submit any evidence 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). After review of all the lay and medical evidence of record, the Board finds that there was no psychiatric injury or disease during service. The service treatment records, which are complete, show no report, complaint, diagnosis, or treatment for psychiatric problems during active service. Rather, the service counseling records note that, during the approximate two-month period of active service, the Veteran consistently demonstrated fair or poor performance in all evaluation areas, demonstrated disciplinary problems due to the Veteran's desire to be discharged from service and not wanting to be in the military, and was ultimately recommended for immediate service discharge. See DD Form 214 (noting that the Veteran was separated from active service due to entry level status performance and conduct); see also July 1985 service Proposed Separation Action UP Entry Level Status and Conduct (Trainee Discharge Program) memorandum (noting that separation was proposed due to lack of motivation rendering the Veteran unsuitable for further military service). Regarding the claimed stressor event of having a female drill instructor shove the Veteran's weapon at him causing facial injury, the Board notes that a July 1985 service counseling form reads that the Veteran was disrespectful in language and body language to a NCO in violation of Article 91, UCMJ when he gritted his teeth, rolled his eyes, and said that he did not care anymore. The NCO told the Veteran to keep his head and eyes to the front and instructed him not to look at her. The NCO wrote that the Veteran continued to look at her as if he wanted to hit her. The Veteran acknowledged having been counseled and the reason for the counseling session, concurred that the information recorded accurately reflected the counseling session, and signed the counseling form. A subsequent July 1985 service record of proceedings under Article 15, UCMJ reads that the Veteran was disrespectful in deportment toward a superior NCO who was in the execution of her office when the Veteran gritted his teeth, rolled his eyes, and said words to the effect of "I don't care anymore." Neither the service personnel records nor the service treatment records include mention that the Veteran sustained a facial injury or that he had a physical altercation with the NCO, as the Veteran has alleged, and the Veteran specifically acknowledged the accuracy of the description of events as recorded when he signed the July 1985 service counseling record. In a September 2017 lay statement, B.M. generally recalled the NCO getting angry and physical with the Veteran more than once and remembered that several drill sergeants encircled the Veteran on one occasion and were screaming and physical with him; however, B.M. also expressed uncertainty about who was involved and did not mention that the Veteran sustained a facial injury as a result of the encounter. As explained above, the service records include no mention of a physical altercation or facial injury sustained by the Veteran during service and merely describe a verbal encounter followed by counseling by the NCO. For these reasons, the Board finds the claimed stressor event of the Veteran having had his weapon shoved in his face by a NCO resulting in facial injury during service has not been independently corroborated by credible, supporting evidence. The weight of the evidence is against finding that there is a current psychiatric disability that is otherwise causally or etiologically related to service. The earliest indication of psychiatric symptoms was demonstrated in 1994 or 1995, approximately nine to ten years after service separation. After review of the record and interview and evaluation of the Veteran, the August 2016 VA examiner opined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD. The August 2016 VA examiner explained that the reported stressor event was not severe or the type noted as traumatic per DSM-IV-TR guidelines, the Veteran was unable to report any symptoms specific to PTSD, and the psychiatric symptoms that overlapped with PTSD or were similar to PTSD were better explained by other DSM-IV-TR psychiatric diagnoses. The August 2016 VA examiner also noted that the 2010 private medical opinion diagnosing PTSD and linking it to the claimed in-service stressor event was flawed because the private examiner based the medical opinion on an incomplete history, did not explain how the reported stressor event met criteria A for a PTSD diagnosis, and did not explain how psychiatric symptoms were consistent with a PTSD diagnosis rather than other psychiatric diagnoses. The August 2016 VA examiner alternatively diagnosed other specified personality disorder with cluster B traits. When providing rationale for the medical opinion, the August 2016 VA examiner wrote that the Veteran did not meet the DSM-IV-TR or DSM-5 criterion A for the diagnosis of PTSD and the current symptoms do not meet the other necessary diagnostic criteria for PTSD either. The August 2016 VA examiner wrote that the presentation included multiple exaggerated statements, which the Veteran acknowledged were inaccurate when asked specifically about them, and testing results further suggested symptom exaggeration, so the Veteran's subjective report could not be used exclusively to determine the presence or absence of symptoms or origin of symptoms. The August 2016 VA examiner acknowledged earlier psychiatric diagnoses of substance use disorder, depressive disorder, and anxiety disorder and opined that the Veteran did not currently meet the criteria for a substance use disorder and, therefore, did not meet the criteria for a substance-induced mood disorder. The August 2016 VA examiner explained that the Veteran had not met the criteria for a substance use disorder in over two years and, under the DSM-5 criteria, no longer qualified for any substance use disorder. The August 2016 VA examiner wrote that the Veteran no longer evidenced enough depressive symptoms to qualify for a diagnosis of a depressive disorder, as he had at the time of November 2013 VA examination. The August 2016 VA examiner noted that the Veteran did evidence clinically significant anxiety symptoms but opined that the symptoms were better subsumed under the diagnosis of other specified personality disorder with cluster B traits. The August 2016 VA examiner opined that the symptom description and presentation were more consistent with a personality disorder with regards to the affective instability. The August 2016 VA examiner wrote that the Veteran evidenced both subclinical depressive and clinically significant anxiety features, as well as an entrenched belief that all persons could not be trusted, and authority figures were wrong for confronting him on any aberrant or illicit behavior. The August 2016 VA examiner explained that the symptom presentation was more consistent with the affective instability associated with a personality disorder. The August 2016 VA examiner noted that the condition developed in childhood, as evidenced by Veteran's self-report of significant legal problems and truancy related to drug abuse during that time. The August 2016 VA examiner noted that the symptoms continued in the military service, as evidenced by his admitted attempts to secure a discharge through misbehavior. The August 2016 VA examiner noted that mistrust of authority figures generated to all others after his discharge, indicating the mental condition continued in a course expected of persons with a personality disorder. The August 2016 VA examiner affective instability continued and increased over time, which was also according to the expected course of this condition. The August 2016 VA examiner reiterated that the mental condition (i.e., affective instability) was not related to, incurred in, or aggravated by service. In an August 2016 addendum report, the August 2016 VA examiner added that she had read through the entire 2010 private psychological evaluation report and noted that the report documented valid testing results, as well as a specific symptom report, but did not document any Criterion A stressor that would meet DSM-IV-TR per DSM-5 criteria for the diagnosis of PTSD. The August 2016 VA examiner noted that the claimed stressor event did not meet the clinical criteria for a PTSD diagnosis and concluded that the private psychologist's findings were, therefore, in error. In a February 2017 addendum report, which was provided because prior addendums were based on an incomplete record, the August 2016 VA examiner noted review of the evidence and wrote that the data did not present a compelling rationale for any changes in consideration of finding of previous examination. The August 2016 VA examiner wrote that the previous examination was the third PTSD examination given to Veteran, and each conducted by three different examiners concluded that there was no evidence for a diagnosis of PTSD. The August 2016 VA examiner noted consideration of the buddy statement and psychologist's statement in support of the appeal and wrote that neither indicated that the claimed stressor event met the DSM-IV-TR or DSM-5 Criterion A for a traumatic stressor event that can cause PTSD. The August 2016 VA examiner reiterated that the Veteran's claimed stressor event still did not meet this criterion. The August 2016 VA examiner has medical training and expertise in the area of psychiatric disabilities, had adequate and accurate data, provided a thorough summary of the relevant evidence of record, and provided sound rationale based on review of the record; therefore, the August 2016 VA medical opinion is of significant probative value. In April 2010, a private psychologist (N.L.) evaluated the Veteran and diagnosed chronic PTSD, in addition to dysthymic disorder and panic disorder without agoraphobia. The private psychologist linked the PTSD diagnosis to the reported assault during service. Also, in November 2016 and August 2017, a private psychologist (B.L.) diagnosed chronic PTSD, and attributed the PTSD diagnosis to the Veteran's traumatic encounter with a drill sergeant while serving in the military. The service treatment records and service personnel records show an incident where the Veteran was noted to be exhibiting disrespectful conduct towards a NCO but are absent of any mention of psychiatric injury or psychiatric problems and include no mention of an assault or facial injury resulting from a confrontation with an NCO. Thus, there is no credible, independent evidence to corroborate the occurrence of the claimed stressor events. For these reasons, the Board finds that the April 2010, November 2016, and August 2017 private medical opinions are based on the inaccurate factual premises of in-service psychiatric injury (i.e., stressor) and/or in-service psychiatric symptoms, so the private medical opinions purportedly diagnosing PTSD and linking it to service are of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993), 5 Vet. App. at 461 (holding that a medical opinion based on an inaccurate factual basis is of no probative value). The Board also notes that, when the August 2016 VA examiner considered the same stressor event as reported by the Veteran and alternatively opined that the alleged trauma events and psychiatric symptoms did not meet criterion for a PTSD diagnosis. Regarding the Veteran's personality disorder, personality disorders are not diseases or injuries under VA regulations and, therefore, are not disabilities for which service connection can be granted. 38 C.F.R. §§ 3.303 (c), 4.9, 4.125(a), 4.127 (2016); Carpenter v. Brown, 8 Vet. App, 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992); Winn v. Brown, 8 Vet. App. 510, 516 (1996). If a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In this case, the weight of the lay and medical evidence is against a finding that the Veteran's personality disorder was subject to superimposed disease or injury during service. Given the absence of psychiatric injury or disease or psychiatric symptoms during service, the Board finds that that no additional disability was superimposed over the personality disorder during service. See 38 C.F.R. §§ 3.303 (c), 4.9, 4.125(a), 4.127; VAOPGCPREC 82-90. The Veteran, as a lay person, is competent to report any psychiatric symptoms he has experienced at any given time; however, he is not competent to diagnose a psychiatric disability or render a competent medical opinion on the question of causation or etiology because answers to such questions require medical expertise in the area of psychiatric disabilities and falls outside the realm of common knowledge of a lay person. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see also Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). The weight of the evidence shows that there is no current psychiatric disability related to service. Consequently, the Veteran's opinion attributing current psychiatric symptoms to service is of no probative value. In summary, the weight of the lay and medical evidence of record shows no current psychiatric disability causally or etiologically related to service. As the preponderance of the evidence is against the appeal, the Board finds that service connection for a psychiatric disability, to include claimed PTSD, must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.