Citation Nr: 21030100 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-39 353 DATE: May 17, 2021 ORDER Service connection for post-traumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disability, to include major depression and personality disorder, is denied. FINDINGS OF FACT 1. The competent and probative evidence does not establish that the Veteran has a current diagnosis of PTSD that was incurred in or aggravated by active service. 2. A psychiatric disorder, other than PTSD, a personality disorder, pre-existed his active service and was not made worse during the Veteran's period of active service, and any current acquired psychiatric disorder is not otherwise etiologically related to such service. Depression was first noted years post-service. 3. The Veteran has a pre-service and post-service history of substance abuse. No acquired psychiatric pathology was noted in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304(f). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder and personality disorder, have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to February 1986, followed by a period of duty in the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) following development from an April 2019 Board Remand. The Board previously recharacterized the Veteran's claim of service connection for an anti-personality disorder (previously claimed as chronic mental illness, including major depressive disorder) as an acquired psychiatric disability, to afford the Veteran the broadest scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). 1. Service connection for post-traumatic stress disorder (PTSD). 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. §§ 1110, 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). Establishing service connection for PTSD generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for post-traumatic stress disorder (PTSD) requires the presence of three elements: (1) credible supporting evidence that the claimed in-service stressor actually occurred; (2) a current diagnosis of PTSD; and (3) medical evidence of a causal connection between current symptoms and the claimed in-service stressor. For a stressor to be sufficient for PTSD, the stressor must meet two requirements: (1) the Veteran must have been exposed to a traumatic event in which he/she experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury or threat to the physical integrity of the Veteran or others and (2) the Veteran's response must have involved a psychological or physio-psychological state of fear, helplessness, or horror. Combat decorations will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed service stressor. Additionally, confirmed prisoner of war (POW) status is considered conclusive evidence of a stressor. In-service personal assault cases may result in evidence from sources other than the veteran's service records to corroborate the veteran's account of the stressor incident. Personal trauma for the purpose of VA disability compensation claims based on PTSD refers broadly to stressors events involving harm perpetrated by a person who is not considered part of an enemy force. Military sexual trauma (MST) is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting. A diagnosis of PTSD must meet all diagnostic criteria as stated in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. Analysis In the April 2019 BVA Remand, the Board determined that new and material evidence sufficient to successfully reopen this claim had been received. The matter is then to be considered on the merits. As noted, the issue was remanded for further development and has been returned to the Board. Service treatment and personnel records reveal on complaints of findings of psychiatric impairment during service. The Veteran was honorably discharged from active service, and enlisted in the Reserve. He was ultimately released from the Reserve, apparently due to failure to participate, which the record suggests was attributed to drug use. Other records show no psychiatric findings until the early 2000's, when he is first shown to have sought some treatment. Those records were considered in exams of 2015 and 2021, as set forth below. On examination in 2015 it was noted that there was a new stressor reported of military sexual trauma (MST) while on duty in Europe. The examiner found no indicia to support this recent stressor history. There were no pertinent markers in service or post-service and it was noted that MST had previously been denied. Moreover, other stressors reported earlier also could not be confirmed or verified, and it was concluded that a diagnosis of PTSD could not be confirmed or supported by the record and findings available. During a February 2021 VA PTSD examination, the examiner was queried for an opinion on causality. The examiner thoroughly reviewed the record, making note of the following findings. The Veteran had previously been diagnosed with antisocial personality disorder and major depressive disorder, recurrent. The Veteran's occupational and social impairment was characterized as due to mild or transient symptoms which decreased work efficiency. The Veteran's history was significant for various diagnoses. Antisocial personality disorder appears to be main limiting diagnosis, but people with this disorder have also been shown to exhibit symptoms of depression. The Veteran visits a psychologist on occasion for depression but is currently not prescribed a medication for it. Though the Veteran vaguely remembers an MST stressor citing intoxication and a reported sexual assault in Europe, such an encounter was not reported for fear of being labeled as a homosexual. Substance abuse reportedly began following this event. Symptoms were reported to include depressed mood, suspiciousness, sleep impairment and difficulty in adapting to stressful situations and circumstances. The February 2021 examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner concluded that is less likely than not that the medical records support MST occurred and resulted in PTSD symptoms for the Veteran. In his rationale, the examiner called the Veteran an "inconsistent historian"; his PTSD stressor report has varied across evaluations. There are no markers in the Veteran's records, and the examiner believed that the diagnosis of PTSD is speculative. It is noted that these findings are otherwise consistent with findings previously recorded. Prison records show treatment for depression, but no findings of PTSD. The Board assigns great probative value to the findings of the February 2021 examination, as these findings were made by a medical professional after in-person interviews and examination of the Veteran. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The Board therefore confirms and continues the prior denial of service connection for PTSD since the evidence does not show that this condition has been clinically diagnosed. Stressors reported could not be confirmed and examiners' have found no basis for a diagnosis of PTSD. 2. Service connection for an acquired psychiatric disability, to include major depression and personality disorder. The Veteran contends that his acquires psychiatric disability, to include major depression and personality disorder, is the result of his active military service and he seeks service connection. 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. §§ 1110, 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). A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such claims, a veteran must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). While the evidence reveals that the Veteran currently suffers from an acquired psychiatric disorder, the competent, probative evidence of record does not etiologically link the Veteran's current psychiatric disability to his service or any incident therein. Further, the competent, probative evidence of record shows that the Veteran's personality disorder clearly and unmistakably pre-existed his military service, and there is no evidence of superimposed acquired pathology during service. As noted, service treatment and personal records are negative for any psychiatric findings, other than that his discharge from the Reserve may have been related to his drug use. Records show that, as part of his personality disorder, he abused various drugs prior to entry into service an apparently belonged ot a "gang" prior to service, Analysis As noted above, no psychiatric findings were noted during service, and he successfully completed his period of active service. The first showing of any acquired psychiatric pathology was many years after discharge from service and his termination of Reserve duty. On examination in 2015 the personality disorder was noted and found to pre-exist service by definition. Pre-service drug use and gang membership were indicators of such. There was no findings of acquired psychiatric pathology pre-service or during service reported on this examination. In connection with the Veteran's claim a February 2021 VA psychiatric examination was rendered. The examiner diagnosed the Veteran with antisocial personality disorder and major depressive disorder, recurrent. The examiner noted that the Veteran's medical history was significant for various diagnoses. In particular, the examiner tied the Veteran's symptoms from prior to service and after service to his currently diagnosed personality disorder and major depressive 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). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the pre-existing personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127. Service connection might also be granted if it is subsequently determined that the "personality disorder" was in fact the early onset of an acquired psychiatric disorder. In light of the evidence as discussed above, the Board finds that the medical evidence does not show that an acquired psychiatric disorder was incurred or aggravated in service and was not superimposed upon the pre-existing personality disorder. In particular, the February 2021 VA examiner found that the Veteran's personality disability likely pre-existed his active military service. In sum, the Board finds that there is no evidence of an acquired psychiatric disorder in service or otherwise related to service. Therefore, the Board finds that there is no evidence of an event, injury, or disease in service. Additionally, there is no probative medical evidence linking a current diagnosis of the claimed acquired psychiatric disorder to the Veteran's military service. To the extent that hallucinations were present, they have been attributed to substance abuse. The Board acknowledges that the Veteran himself has claimed that his acquired psychiatric disorder is directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., feeling sad or depressed; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson, 581 F.3d at 1313. Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection, and the Board affords these statements little probative value. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Omosegbon, Babalakin O. 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.