Citation Nr: 21039848 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-07 965 DATE: July 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder (claimed as a nervous condition), to include chronic pain with depression, anxiety, and posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT An acquired psychiatric disorder is not shown to be causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1970 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In that rating decision, the RO denied service connection for an acquired psychiatric disorder, a low back disorder, and a left knee disorder. In November 2015, the Board remanded the case for further development. The case was subsequently returned to the Board for appellate review. In a September 2016 decision, the Board denied the Veteran's claims for service connection for an acquired psychiatric disorder, a low back disorder, and a left knee disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Veteran's representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Partial Remand (Joint Motion) requesting that the Court vacate the Board's decision and remand the matters for readjudication in compliance with the directives specified. The Court issued an Order in September 2017 granting the motion and returning the case to the Board. Thereafter, in April 2018, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. While the case was in remand status, the RO granted service connection for lumbar spine and left knee disabilities in an August 2020 rating decision. The grants constitute a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). As such, these claims are no longer in appellate status and thus, are no longer before the Board. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Entitlement to service connection for an acquired psychiatric disorder (claimed as a nervous condition), to include chronic pain with depression, anxiety, and posttraumatic stress disorder (PTSD), is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As psychoses is considered to be chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309, 3.384; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the DSM-5 (Fifth Edition). The Veteran's appeal was certified to the Board on August 14, 2014. See August 2014 VA Form 8. The Board finds that the Veteran may only establish service connection based on a DSM-5 diagnosis. See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014) and 80 Fed. Reg. 14,308 (March 19, 2015) (adopting interim final rule as final). Effective July 13, 2010, 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 PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3). 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for a psychiatric disorder. The Veteran has contended that he developed a psychiatric disorder due to experiences during bootcamp. Specifically, he has contended that he was psychologically and emotionally abused, which was motivated by racism against him and other Latinos, by sergeants during training. See, e.g., February 2010 claim; August 2011 private medical opinion; May 2019 independent medical evaluation (IME). The Veteran's service treatment records include an August 1970 mental hygiene consultation service psychiatric evaluation report in connection with a conscientious objector application and an October 1970 mental health consultation report. In the August 1970 report, an Army psychiatrist stated that the Veteran had no mental defects sufficient to warrant separation from service. He determined that the Veteran was mentally responsible. He diagnosed the Veteran with "emotional instability reaction, chron[ic], mild" manifested by "labile mood and low stress tolerance." He indicated that the Veteran's stress was mild, routine military duty. He indicated that the predisposition was unknown, it did not develop in the line of duty, and it existed prior to service. The psychiatrist cleared the Veteran for conscientious objector classification. In the October 1970 report, the Army psychiatrist noted that the Veteran was first evaluated by mental health in August 1970 in connection with his conscientious objector application. The psychiatrist again diagnosed the Veteran with "emotional instability reaction, chron[ic], mild" manifested by "labile mood and low stress tolerance." He indicated that the Veteran's stress was mild, routine military duty. He indicated that the predisposition was unknown, it did not develop in the line of duty and existed prior to service, and that the Veteran was psychiatrically cleared for full duty. Thereafter, the Veteran separated from service following medical board proceedings for migraine headaches. In an October 1970 separation examination report, a normal psychiatric evaluation was noted. In a March 2010 private psychiatry note, Dr. B., noted that the Veteran had been under his psychiatric care since November 2004. He noted that the Veteran had been receiving Social Security Administration (SSA) disability benefits due to chronic physical and emotional conditions since 1993. Dr. B. included diagnoses of Chronic Pain Disorder with Depression and Anxiety, Chronic Paranoid Schizophrenia, and chronic PTSD. In an August 2011 private medical opinion, a private physician noted that the Veteran had a history of severe major depression. She noted that the Veteran presented with episodes of excessive anxiety and worry. The Veteran reported that his psychiatric symptoms began during service and that he became very nervous due to the way he was treated. He indicated that he had no psychiatric problems prior to service, and that he had a lot of problems with his sergeants during service, which caused him to start to feel depressed and frustrated. He related that he isolated himself and became very anxious, and that his symptoms worsened with time. The physician opined that it was more likely than not that the Veteran's nervous problem was due to the stress of his duties and training during service. In a February 2013 VA mental disorders examination, the examiner diagnosed the Veteran with a depressive disorder, not otherwise specified (NOS). During the examination, the Veteran explained that he injured his back during basic training, and he was discharged. He reported that he worked odd jobs until over 20 years ago when he retired due to psychiatric impairment. He indicated that his first encounter with a mental health professional was while he was on active duty due to a strained relationship with a sergeant. He related that he started private treatment over 20 years ago for depression and that he received treatment until he sought psychiatric treatment at a VA Medical Center (VAMC) in 2010. The examiner opined that the Veteran's depressive disorder was less likely than not incurred in or caused by service. The examiner noted that the Veteran was evaluated by an Army psychiatrist in service who reported, "Emotional Instability Reaction, Chronic, Mild; manifested by labile mood and low stress tolerance. Stress: minimal, routine military duty. Psychiatrically cleared for full duty." The examiner noted that the Veteran filed an application for conscientious objector, and it was granted. The examiner also reported that the Veteran did not pursue further treatment until 1993, which was 23 years after his military discharge and the events that led to his in-service psychiatric evaluation. Thus, the examiner concluded that "[a] temporal relationship between the neuropsychiatric disorder and the [V]eteran's military service is not established." In a December 2015 VA addendum opinion, the examiner again referenced the October 1970 Army psychiatrist's consultation note that the Veteran had chronic, mild Emotional Instability Reaction manifested by labile mood and low stress tolerance despite minimal stress and routine military duty. The Army psychiatrist also noted that the Veteran was psychiatrically cleared for full duty and he was clinically evaluated as psychiatrically normal. The VA examiner reported that the Veteran did not pursue further treatment until 1993, which was 23 years after he separated from service and the events that led to his psychiatric evaluation. The examiner indicated that in 2010, seventeen years after he sought psychiatric care, he had a diagnosis of Depressive Disorder NOS. The examiner stated that although the Veteran was diagnosed with multiple psychiatric disorders by a private psychiatrist, Dr. B., the psychiatrist failed to establish a baseline for psychosocial functioning deterioration. The examiner noted that the Veteran started treatment with Dr. B. in November 2004, which was 34 years after he separated from service. In addition, the examiner noted that the August 2011 private medical opinion, discussed above, indicated that the Veteran presented with episodes of excessive anxiety and worry, among other symptoms. The examiner acknowledged that the Veteran had a long-standing history of psychiatric symptoms since 1993 when he pursued psychiatric care. The examiner assumed that the Veteran had exhibited psychiatric symptoms before; however, there was no impairment in psychosocial functioning and, therefore, the symptoms could not be considered mental disorders. The examiner again concluded that "[a] temporal relationship between the neuropsychiatric disorder and the [V]eteran's military service is not established." She found "no relationship whatsoever" between the Veteran's service and the neuropsychiatric condition he had exhibited since 1993. In the September 2017 Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons or bases for finding that VA satisfied its duty to assist in providing the Veteran with an adequate VA mental disorders examination. The Joint Motion noted that the Veteran was afforded a VA examination in February 2013 wherein the VA examiner opined that the claimed condition was less likely than not related to service, explaining that "[a] temporal relationship between the neuropsychiatric disorder and the veteran's military service is not established." Thereafter, in November 2015, the Board remanded the claim for an addendum opinion to determine whether the Veteran's psychiatric disorder, to include chronic pain with depression and anxiety, was caused by service. In a December 2015 VA addendum opinion, the examiner provided the same conclusion and rationale as the February 2013 opinion. She did not explain her reasoning for finding that there was no relationship. However, in the September 2016 decision, the Board found that the December 2015 VA opinion was adequate and that there had been substantial compliance with the November 2015 remand directives. The parties to the Joint Motion found otherwise, vacating the decision, and remanding the case to the Board to obtain a new addendum opinion, if it was determined that one was needed. Thus, the 2013 and 2015 opinions are competent and credible, but have lower probative value for failing to provide adequate rationales. See, e.g., Brier v. Shulkin, No. 16-4220, op. at 9 (U.S. Vet. App. Nov. 29, 2017) (Toth, J.) (observing that probative value exists on a spectrum separate from adequacy). In a May 2019 VA mental disorders Disability Benefits Questionnaire (DBQ), the examiner referenced an August 1970 Army psychiatrist's consultation note, in which the psychiatrist found that the Veteran had "no mental defect sufficient to warrant separation from the service" and the physician diagnosed the Veteran with chronic emotional instability manifested by labile mood and low stress tolerance. The examiner noted that the Veteran was hospitalized in October 1970 for intractable headaches that did not respond to medications, diagnosed with migraines, and separated from service. The Veteran reported that after he separated from service, he did odd jobs until he was granted SSA benefits due to a mental disorder. The Veteran reported that he received treatment with a private psychiatrist, Dr. B., since 1990 and that he was unable to continue private pay, so he went to the San Juan VA for follow-up. The Veteran had been in VA treatment in the behavioral clinic since December 2015. The examiner opined that the Veteran's claimed psychiatric disorder was less likely than not incurred in or caused by service. The examiner noted that there was no history of a mental disorder before service and that while he was found vulnerable to stressors while on active duty, he was not diagnosed with a mental disorder; rather, he was discharged due to intractable migraines. The examiner related that the Veteran was able to work after he separated from service, but that he became ill in approximately 1990 to 1993 and he started receiving private psychiatric care for depressive illness. The examiner also stated, "Evaluation at the C&P unit led to a diagnosis of depressive disorder that is not associated to military service." Following the May 2019 VA examination, the Veteran submitted an independent medical evaluation (IME) and VA DBQ dated in April 2021, to support his claim. In the IME, the private psychologist noted that the Veteran was drafted into the Army after he finished high school during the Vietnam War era and that he was discharged during his initial training in November 1970. The Veteran reported that he worked odd jobs after he was discharged until he retired on disability in 1993 due to mental illness. The Veteran stated that he was "angry and anxious" since he returned from the Army. He stated that he had problems at work until he was "pensioned for mental problems, for my disability, by the Social Security Administration." The psychologist diagnosed the Veteran with PTSD and major depressive disorder. He noted that the Veteran had no pre-military psychiatric diagnoses or treatment and that his clinical examinations and medical records contained no evidence of any traumatic event post-military sufficient to meet the criteria for PTSD. The examiner opined that it was more likely than not that the Veteran's PTSD and depressive disorder caused by trauma experienced during Vietnam war era military training were more likely than not solely due to his military service. The psychologist reported that the Veteran feared for his life because of abusive experiences he endured during basic training. The Veteran stated that during basic training, sergeants engaged in psychological and emotional abuse motivated by racism against him and other Latinos. He described his military experience as traumatizing because of the sustained emotional abuse that he was subjected to. He explained, "I wasn't like this before the Army. They damaged me, they damaged my mind, this won't change, it's always in my mind." He related that the sergeants cursed at him, stepped on his back with their boots while he was trying to do push-ups, mocked, and bullied him, and constantly punished the Latinos. The psychologist stated that science literature argues that bullying is one major factor that has been noted as one of the severe life events most commonly reported by soldiers and one of the major contributors to increasing the risk for developing PTSD among deployed and new service members. In addition, in the May 2019 IME, the psychologist related that studies suggest that the psychological abuse, bullying, and related potential trauma that some service members experience during their military service can be devastating and several suicides among military personnel have been attributed to bullying. The psychologist also noted that a review of the Veteran's VA treatment notes and his clinical interview indicated that the Veteran had a history of high blood pressure and chronic pain. He indicated that chronic pain and PTSD are often co-occurring conditions in patients who have faced traumatic experiences. He also stated that researchers propose that "anxiety sensitivity" is linked to PTSD/chronic pain co-occurrence and that PTSD-linked anxiety fuels the belief of harm from the perception of pain, worrying the sufferer even more. In the May 2019 IME, the psychologist related that the VA examiners may have "failed to recognize the presence of PTSD for a variety of reasons," including the lack of a detailed and thorough PTSD assessment. He noted that clinical research demonstrated that PTSD patients might be more reluctant to talk about their memories or traumatic experiences and that they may also block memories of trauma for many years. He stated that PTSD patients may not display all the PTSD symptoms until years after the traumatic event, which may lead to delayed onset of PTSD and misdiagnosis of PTSD. He indicated that PTSD patients may be misdiagnosed and treated for comorbid conditions, such as depression and anxiety. He also explained that PTSD-related symptoms often overlapped in patients with Anxiety Disorders and Depression Disorders. The psychologist indicated that current literature proposed that 80 percent of PTSD patients suffer from a comorbid disorder with the most common being depression, anxiety, alcohol dependence, and substance abuse. In a June 2021 brief, the Veteran's representative contended that the Veteran warrants service connection for PTSD. The representative stated that in order to establish service connection for PTSD, the Veteran must meet three requirements: 1) He must provide competent medical evidence that he is currently suffering from PTSD; 2) He must prove the occurrence of an in-service event that caused his PTSD; and 3) He must establish a nexus between PTSD and the in-service precipitating event. The representative cited to the May 2019 IME opinion, in which the psychologist determined that the Veteran satisfied the DSM-5 criteria for a diagnosis of PTSD. The representative contended that the Veteran's lay testimony alone established the in-service stressor because it was based on in-service personal assault. With limited exceptions, a veteran's lay testimony alone is generally insufficient to establish the occurrence of a stressor. 38 C.F.R. § 3.304(f). Special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton v. West, 12 Vet. App. 272 (1999). Medical evidence could be used to corroborate the Veteran's claimed stressor in personal assault PTSD claims. Id. Further, 38 C.F.R. § 3.304(f)(5) also allows the Veteran to use evidence other than the service treatment records to corroborate his account of the stressor incident. This evidence includes, but is not limited to: medical records, police records, statements from the Veteran's family and friends, and changes in behavior, to include, substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. This evidence is still subject to a credibility analysis. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). The other exceptions to the stressor verification requirement are inapplicable in this case. See 38 C.F.R. § 3.304(f)(1)-(4). While there is conflicting evidence regarding the diagnosis of PTSD, the preponderance of the evidence is against the finding of a verified in-service stressor. While in cases of personal assault, evidence from sources other than the Veteran's service records may be used to corroborate the Veteran's account, there is no evidence of any complaints of assault, or treatment following an assault or behavioral changes documented in the Veteran's service records. In fact, August 1970 and October 1970 psychiatric evaluations, an Army psychiatrist stated that the Veteran had no mental defects sufficient to warrant separation from service and that he was psychiatrically cleared for full duty. Accordingly, the Veteran has not established a claim for service connection for PTSD under 38 C.F.R. § 3.304(f)(5). Alternatively, the Veteran does have a diagnosis of a depressive disorder, NOS. However, in the February 2013, December 2015, and May 2019 VA opinions, the examiners concluded that the Veteran's depressive disorder was less likely than not due to service. The examiners noted that while the Veteran was found vulnerable to stressors while on active duty, he was not diagnosed with a mental disorder. In fact, the examiners agreed that the Veteran did not seek psychiatric treatment until the 90s, over 20 years following his separation from service. In the May 2019 IME, the private psychologist opined that the Veteran's depressive disorder was due to trauma experienced during service. He noted that clinical research demonstrated that PTSD patients might be more reluctant to talk about their memories or traumatic experiences and that they may also block memories of trauma for many years. He stated that PTSD patients may not display all the PTSD symptoms until years after the traumatic event, which may lead to delayed onset of PTSD and misdiagnosis of PTSD. He did not assert that the Veteran had delayed-onset depressive symptoms and he did not discuss the Veteran's lack of treatment for over 20 years following service for depressive symptoms. Thus, the Board finds the medical opinions of the VA examiners highly persuasive as the medical examination reports contain clear conclusions with citations to the medical records that support these conclusions along with reasoned medical explanations. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board gives significant weight to the VA examiner's opinions. The Board does acknowledge the Veteran's own statements asserting that his depressive disorder is related to his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of a current psychiatric disorder and whether the delayed onset of such a disorder is related to military service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds the VA examiners' opinions to be more probative, as they were provided by a medical professional with knowledge, training, and expertise and is supported by rationale based on such knowledge. The VA examiner also reviewed pertinent evidence and considered the Veteran's own reported history and lay statements. Consequently, the claim for entitlement to service connection for an acquired psychiatric condition is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the (Continued on the next page) preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.