Citation Nr: 21040495 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-62 337 DATE: July 3, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a 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 Marine Corps from July 1969 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing is of record. This matter was previously remanded by the Board in September 2020 for additional development. Specifically, the Board requested a new VA medical opinion, as well as an effort to obtain any outstanding medical treatment records. The Board finds that these requests have been substantially fulfilled. This matter is now before the Board for further appellate review. 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) The Veteran asserts that he is entitled to service connection for a psychiatric disorder. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). During the Veteran's February 2020 hearing, the Veteran testified that he was injured after a fall and was discharged as a result of his injuries. He stated that being discharged left him feeling devastated, worthless, and dejected. He stated that after he was discharged from service, he started seeing a psychiatrist at a hospital in Middleton, Wisconsin in the 1970's. The Veteran also reported that he did not receive any medical treatment while he was in the service and that physical issues from his fall developed later on. He stated that as a result of the fall, he does not sleep at night and is unable to maintain a relationship. He also stated that he wants to control everyone around him and has anger issues. The Veteran also reported that he stutters, smokes, and drinks due to his in-service fall. On the Veteran's June 1969 entrance examination, he indicated that he has had trouble with nervousness and has stuttered or stammered. The Veteran also reported that he had been a patient at a mental hospital in 1963 but did not state the reason why. The examiner stated that the Veteran's psychiatric evaluation was found to be acceptable. The examiner also indicated that the Veteran's left knee was swollen. A note on a subsequent examination dated October 1969 stated that the Veteran had a disqualifying defect or disease. More specifically, the examiner reported that the Veteran had posttraumatic swelling of the left knee. In a 1975 rating decision, the Veteran was denied entitlement to service connection for left knee and ankle disabilities. It was reported that the Veteran failed to reply to the VA's request for additional information on his injury. Additionally, the RO noted that the Veteran had a history of left knee swelling due to a posttraumatic condition and that there was no indication of any aggravation or trauma in available service medical records. In a May 1994 decision from the Social Security Administration (SSA), the Veteran was granted entitlement to disability compensation due to unemployability. The SSA found that the Veteran had psychiatric limitations with moderate restriction of activities of daily living; moderate difficulties in maintaining social functioning; deficiencies of concentration, persistence or pace, occurring often; and repeated episodes of deterioration or decompensation in work or a work-like setting. It was reported that the Veteran injured himself in November 1981 while working as a stuntman and injured his lower back and right rotator cuff. Among other documents submitted by the SSA, was a letter from the Veteran's chiropractor in November 1991. The chiropractor stated that the Veteran had been receiving treatment at his office since July 1991 for a job injury that originated in November 1981. A letter from a different chiropractor, from June 1992, stated that the Veteran attributed his symptoms to an industrial injury which occurred in November 1981 when he fell off of an M-60 tank. The Veteran also reported to the SSA that his initial industrial injuries were received in November 1981. Also furnished by the SSA, is an October 1990 treatment record from the City of Hope National Medical Center. The record documents that the Veteran reported an onset of motor and vocal tics around the age 6 or 7 as well as the onset of compulsive behavior. The Veteran reported that as a child he had difficulties in school and had a very short temper. He stated that he was placed in a mental hospital for about a year at the age of 12 due to his compulsions and hitting his mother. There was little change in his behavior. The Veteran also reported that in his 20's he worked on building silos and was very short tempered with his workers. The impression by the evaluator was that the Veteran had Tourette Syndrome, a residual form of Attention Deficit Hyperactivity Disorder, and Obsessive Compulsive Disorder. The Veteran submitted an application for compensation with the VA in December 1994. On his application, the Veteran stated that since his entry into the Marine Corps, he has had depressed moods and that the severe mental, physical, and emotional problems have resulted in a series of injuries due to his lack of concentration, and inability to protect himself. He reported these issues began after his entry into the service. He reported that he had an injury to his right shoulder and degenerative disc disease which was incurred during his military service. He reported that he was discharged from the service in October 1969 but no reason was given for the discharge. In a May 1995 rating decision, the RO determined that the Veteran's military records were negative for a mental condition, right shoulder injury, and degenerative disc disease. The RO stated that the Veteran was discharged due to a pre-existing left knee disability. Treating physicians, Dr. N. and Dr. Z., submitted a statement in February 1996. The letter stated that the Veteran was being treated at the Las Vegas VA Medical Center Mental Health Clinic. Additionally, the physicians stated that due to the nature and severity of the Veteran's service connected mental health problems, he was unable to comply with attendance requirements for Domestic Court Hearings. The Veteran appeared for a hearing before a Hearing Officer at his local RO in September 1996. The Veteran testified that, prior to entering the service, he was in excellent shape. The Veteran reported that he fell off a tanker and doesn't remember much from the incident because he was unconscious. He reported that he went to the hospital after the incident. The Veteran reported that he was put on medication for his injuries and that his shoulder never healed. He reported that he also went to therapy for his shoulder while in service. The Veteran then stated that he was subsequently discharged from service without cause. He clarified that he wasn't discharged for medical purposes. The Veteran's representative stated that the Veteran hurt his shoulder and back again in November 1981 after a fall while working as a stagehand. The Veteran reported that the fall in 1981 aggravated his injuries from his in-service fall. The Veteran also stated that his subsequent discharge was devastating because he didn't want his family and friends to think he was a quitter. He reiterated that the service got rid of him without cause. During the September 1996 RO hearing, the Veteran stated that he wasn't treated for any psychiatric problems while in service but should have been due to how upset he was that he was being discharged. He reported that he sought mental health treatment post-service but he could not remember what year he began receiving treatment. The VA received a letter from treating physician, Dr. Z., in regard to the Veteran's claim for service connection in September 1996. In the letter, Dr. Z. states that the Veteran reported enlistment in the Marine Corps in July 1969 followed by a sudden discharge 4 months later with no explanation. The Veteran also reported to Dr. Z. that his discharge made him feel worthless and that it has affected his life over the years. The Veteran reported to his treating physician that he never had any of these problems before he became a Marine. VA treatment records from the Las Vegas VAMC from May 1997 document a mental evaluation. The evaluation notes that the Veteran's current physical, emotional, and behavioral problems reportedly date back to his first back injury when he fell off a tanker in service. The Veteran reported being unconscious for a few hours. It was determined that the Veteran's emotional and behavioral problems met the criteria for a diagnosis of Mental Disorder Due to a General Medical Condition. It was reported that the Veteran had recurrent depression; anxiety; unpredictable behavior; explosiveness; and, sometimes, poor judgement. The report further stated that the mood disturbance caused clinically significant distress and impairment in social and occupational functioning with temporal association with the series of back, shoulder, and post-concussion syndrome since 1969. The Veteran was specifically diagnosed with Organic Mood Disorder with severe depression, anxiety, and Somatoform features; Tourette Syndrome; a history of alcohol dependence; and a Personality Disorder. An updated outpatient treatment report from Dr. N. at the Las Vegas VAMC was received by the VA in September 1997. It was again reported that the Veteran had no emotional or physical problems prior to his entry in the Marine Corps in 1969. The report stated that while at basic training in Camp Pendleton, the Veteran fell off of a tanker and was unconscious for almost 3 hours. Due to the incident, it was reported that the Veteran started having memory problems, headaches, angry outbursts, and back pains. The Veteran was subsequently discharged from the military because he was no longer able to perform training requirements. Dr. N. noted that the Veteran's psychiatric symptoms had a temporal connection with his original traumatic brain injury when he fell of the tanker in service. The physician stated that a loss of consciousness for 3 hours is significant and could result in long term residuals of intellectual and emotional deficits that could last for years after head trauma. The Veteran appeared for a hearing before the Board in May 2005. During the hearing the Veteran stated that when he entered the service he was living in Lodi, Wisconsin. He stated that he was put on reserve status until October. The Veteran disclosed that he was injured before he went to Camp Pendleton but that he had only fallen from a distance of 2 to 5 feet off of a ladder and not 25 feet as a referenced medical note suggested. He stated that he hurt his left knee from the fall. The Veteran then states that he was sent to Camp Pendleton in October, fell off of a stationary tank during training, and was discharged in early November 1969 without being told why he was discharged. The Veteran then stated that while working as a stagehand, he fell from the back end of a pickup truck. He stated that his records previously misstated where he fell from and that he did not fall from a tank at that time but instead fell from the back of the pickup truck. He also stated that he was never a stuntman. The Veteran reported that the was in admitted to a mental hospital when he was a child but could not remember the year or how old he was. He stated that he was admitted before he became a teenager but did not remember why or how long he was there. In March 2014, the VA received a statement in support of the Veteran's claim. The Veteran stated that during boot camp he fell from a tank and was rendered unconscious. He reported that he was discharged from the Marine Corps as a result of this accident. The Veteran submitted another statement in October 2015. He reported that during basic training he was riding on the outside of a tank during maneuvers when the tank hit rough grounds and he was bounced off the tank. He stated that he was knocked unconscious and woke up in the base infirmary where he was treated for his injuries. He reported that this was a traumatic experience and that he still feels abandoned and worthless. The VA received a letter from the Veteran's private treating physician in December 2016. The letter was dated from February 2014. In the letter, the physician diagnosed the Veteran with PTSD. The physician stated that the Veteran discussed numerous traumatic experiences that he endured while serving in the Marine Corps. The physician opined that the Veteran's PTSD was more likely than not related to his military service. The physician however did not state what experiences led to the Veteran's PTSD or why his current PTSD was related to service. He merely referenced the Veteran's DD-214 and eluded to stressor statements located in medical records. The Veteran appeared for a VA examination in December 2017. The examiner determined that the Veteran did not have PTSD that conformed to DSM-5 criteria. The examiner reported that the Veteran had moderate recurrent Major Depressive Disorder. The Veteran reported that he fell 25 feet off of a tank during training and suffered many injuries as a result. He stated that he was honorably discharged 6 months later in 1969 and noted that his injury was very traumatic and he felt worthless because he could no longer serve his country. He reported that he also witness some accidents where others were severely injured and stated that 6 people that he knew died during training. The examiner opined that the Veteran's mental health condition was at less likely than not related to his military service. The examiner explained that the Veteran sought treatment in 1981 for mental health issues and that prior records suggest that he had another significant fall which triggered mental health symptoms. The examiner noted that records further suggest that psychiatric issues were not demonstrated until the 1990's, which was decades after his service. In the September 2020 Board decision, the Board found the December 2017 VA examination to be inadequate. Specifically, it was not clear to the Board whether the examiner considered all of the records that where in the file prior to making a decision. Thus, a new examination was requested. Pursuant to the September 2020 Board remand, the Veteran appeared for another VA examination in October 2020. The examiner diagnosed the Veteran with Other Specified Personality Disorder. The examiner explained that when one sees so much variance in diagnoses, across provider and time, as well as diagnosis, it generally points to some sort of personality dysfunction. The examiner opined that the Veteran's Other Specified Personality Disorder did not have its onset during service and is not otherwise related to service. The examiner explained that historical records are clear that significant relational, emotional, and behavioral problems existed since childhood. The examiner further opined that the Veteran's early psychiatric disability was not aggravated by service. The examiner explained, through the reference multiple documents of record, that the Veteran's behavior has been consistent since childhood. The Board finds that the October 2020 VA examiner's opinion is both adequate and entitled to great probative weight; the opinion considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Upon reviewing all of the pertinent evidence of record, the Board finds that entitlement to service connection for a psychiatric disorder (to include PTSD) is not warranted. First, the Board finds that the Veteran's in-service stressor incident which, he claims led to his psychiatric disorder, has not been verified. Notations from the Veteran's June 1969 entrance examination reveal that he had a prior left leg injury. A letter from a private treating physician dated October 18, 1969, stated that the Veteran fell 25 feet from a silo on August 25, 1969, and injured his legs and back. This letter was not corroborated by any contemporaneous treatment records. The letter reported that the Veteran was still having trouble with his left knee. Upon reexamination on October 23, 1969, the Veteran was found to be unfit for enlistment due to his posttraumatic swelling of the left knee. Military personnel records show that the Veteran was ordered to return to his current residence on July 3, 1969 and report to the Officer in Charge on October 28, 1969 for extended active duty. A certificate in the Veteran's file states that he was honorably discharged from the service on October 29, 1969. Another certificate states that he was discharged on November 7, 1969. Documented attempts have been made by the VA to verify the Veteran's claimed in-service stressor, however, the VA was unable to locate any records pertaining to his claimed incident. Evidence of record reveals that the Veteran worked on silos prior to joining the Marine Corps and injured his leg prior to service. The evidence is consistent with the finding that the Veteran was discharged from service because of a pre-existing leg injury and not because of a fall from a tank. Additionally, records corroborating the Veteran's account are unable to be located. Mere words alone are not sufficient to verify an in-service stressor event. Second, the Board finds that the Veteran does not have a current disability for which service connection can be granted. In this regard, the Veteran has a multitude of diagnoses from different providers. However, the providers of record (such as Dr. N. and Dr. Z.) have given diagnoses based on the Veteran's report of stressors and not based on objective medical evidence of record. Many of his providers did not address that the Veteran struggled with psychiatric issues as a child and was even hospitalized for approximately a year at the age of 12. This hospitalization was documented on the Veteran's June 1969 entrance examination. The examiners also did not reference the Veteran's fall from a silo prior to being discharged from the service. Thus, these diagnoses lack credibility. The Board finds that the diagnosis given by the October 2020 VA examiner has more probative weight than the other diagnoses. The diagnosis given on October 2020 is the most recent, and the examiner considered all of the evidence of record. Thus, the Board finds that the Veteran's current diagnosis is Other Specified Personality Disorder. Personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Personality disorders are not entitled to the presumption of soundness under 38 U.S.C. § 1111, thereby not requiring VA to show by clear and unmistakable evidence that the personality disorder preexisted service. See Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed.Cir.2012). Thus, the Board finds that the Veteran does not have a current psychiatric disability for the purpose of service connection. Thus, the Board finds that entitlement to service connection for a psychiatric disability (to include PTSD) is not warranted. While the Board acknowledges the Veteran's lay statements, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as this issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the objective evidence of record. Moreover, the Board does not find the Veteran to be credible as his statements have been inconsistent throughout the record. As such, entitlement to service connection is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a psychiatric disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, Associate 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.