Citation Nr: 21040548 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 19-20 229 DATE: July 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran does not have a current diagnosis of PTSD, and his acquired psychiatric disorder was not present in service, was not manifest to a compensable degree within one year of his discharge from service and is not otherwise related to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1960 to November 1963. The Board thanks him for his honorable service to our country. This matter is before the Board of Veteran's Appeals (Board) from a January 2018 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO), and has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. In March 2021, the Veteran, his spouse (and fiduciary) and his primary VA social worker testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. During the hearing, the undersigned granted the motion to advance the Veteran's appeal on the Board's docket. On behalf of the Veteran, his fiduciary waived RO consideration of any additional evidence added to his file. The record was held open for 90 days for submission of additional evidence. Additional evidence, consisting of copies of private treatment records, was received in April 2021. During the March 2021 Board hearing, the Veteran's representative indicated that there may be some "hard copies" of documents which may not be in the file; however, he was "pretty comfortable" that the record was complete and he would notify VA of any records which have not been associated with the Veteran's claims file. VA has not been notified of any records missing from the Veteran's claims file. The Veteran's representative also asserted that the Veteran had not been provided a "full evaluation relating to any PTSD that he might have incurred" from an incident in service "because he has some of the behaviors." However, as explained below, the Veteran underwent VA mental disorders examination in May 2018 and the examiner determined that the psychiatric diagnosis (unspecified bipolar and related disorders) was provisional because the Veteran was "unable to describe his history and symptoms due to his dementia." Therefore, the Board finds that VA's duty to assist does not require further psychiatric evaluation of the Veteran as the Veteran is unable to participate in such evaluation. Neither the Veteran, his fiduciary, his representative nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed to adjudicate the issue on appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). To establish a right to compensation for a present disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). In addition, certain chronic diseases (including psychosis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned disease). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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. 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; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Except as otherwise provided by law, a veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Psychiatric Disorder Initially, it is noted that the May 2018 VA mental disorders examination report and opinion notes the Veteran's daughter reported that she "believes that [the] veteran had a very difficult childhood and experienced bipolar symptoms prior to service." However, a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. In this case, as the March 1960 enlistment examination reflects a finding that the Veteran was clinically normal on psychiatric evaluation and he reported no history of mental health symptoms, the Board finds the statements from the Veteran's daughter do not constitute clear and unmistakable evidence of a psychiatric disorder prior to his service entrance (and in-service aggravation), sufficient to rebut the presumption of soundness. Accordingly, the Board may proceed with a direct service connection analysis. It is claimed on the Veteran's behalf that his acquired psychiatric disorder is related to military service. Specifically, it is claimed that he has PTSD as a result of being stabbed by his spouse while he was sleeping during service in July 1963. See January 2019 VA Form 21-0781a, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, and March 2021 Board hearing transcript. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). For matters certified to the Board after August 4, 2014, as in the present case, a diagnosis of a mental disorder must conform to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). 70 Fed. Reg. 45,093 (Aug. 4, 2014). The Veteran's service records include a Report of Accidental Injury which shows that, in in July 1963, he was stabbed in the abdomen while sleeping by his wife. Thus, an in-service stressor is established. The Veteran's service treatment records (STRs) show that he was clinically normal on psychiatric examination for enlistment in March 1960. He was hospitalized in November 1963 for a suicide gesture after ingesting approximately 17 Meprobamate tablets. It is noted that, because of financial and marital problems, the Veteran had applied for a hardship discharge. However, when the paperwork related to the discharge was held up, he became depressed and admitted to attempting suicide. It is also noted that the Veteran denied suicidal ideation and stated that the only reason he took the pills was to attract attention of people so that they would realize his predicament and expedite his discharge. The final diagnosis was emotional instability reaction, acute, severe, manifested by impulsivity, extreme marital discord, depression and suicidal gesture. The Veteran's November 1963 service separation examination shows an abnormal psychiatric evaluation, noted as "[e]motional instability reaction, acute." The Veteran's service personnel records (SPRs) include a November 1963 Certificate which notes he had undergone psychiatric evaluation with the following findings: (1) the Veteran did not have a psychiatric disease or condition which would warrant separation from service, (2) he had the mental capacity and was free of mental defect, disease, or derangement so as to be able to understand the nature and probable consequences of all his actions, (3) he was able to distinguish between right and wrong and to adhere to the right and (4) he had the mental capacity to understand any proceedings against him and to cooperate in such proceedings if necessary. The diagnosis was emotionally unstable personality, acute, severe, manifested by impulsivity, extreme marital discord, depression and suicidal gesture. It was recommended that action be taken for his separation from service under the appropriate administrative regulation. A May 1978 VA examination report notes the Veteran's history of being stabbed while in the military by his wife after a marital dispute. On psychiatric evaluation, the Veteran was noted to be well adjusted, had appropriate responses, was emotionally stable and well suited for any type of work except heavy lifting. Although the Veteran's service records confirm he was stabbed (assaulted) by his wife and hospitalized for a suicidal gesture, he does not have a confirmed diagnosis of PTSD that conforms with the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) at any time during or near in time to this appeal. His VA and private treatment records proximate to and during the appeal period show findings of mental health symptoms; however, these records are silent as to a diagnosis of PTSD. Moreover, PTSD was not diagnosed by the May 2018 VA examiner who used DSM-5 criteria. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (holding that with respect to psychiatric disabilities, VA has expressly limited compensation to disabilities conforming to a DSM-5 diagnosis); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that service connection may not be granted unless a current disability exists). In the absence of a confirmed diagnosis, service connection for PTSD is not warranted and that aspect of this appeal is denied. See 38 C.F.R. § 3.304(f). Despite the absence of a diagnosis of PTSD, private treatment records include the initial post-service mental health diagnosis in a January 2013 Progress Note, which shows the Veteran complained of progressive memory loss for the last several years. The assessment was that his "new problems" included vascular dementia with depressed mood. The examiner noted that the Veteran was "probably suffering from vascular and Alzheimer dementia." In addition, the May 2018 VA mental disorders examination report includes diagnoses of unspecified bipolar and related disorder, provisional, and vascular dementia, with depressed mood, by history. Thus, the requirement of a current disability during the pendency of his claim is been met. The question for the Board is whether a causal relationship or nexus exists between his current psychiatric disorder and his active military service. After review of the record, the Board concludes that the preponderance of the evidence weighs against finding that any of the Veteran's diagnosed acquired psychiatric disorders began during service or are otherwise related to an in-service injury, event, or disease, including being stabbed during service. The record shows that the initial post-service finding of a mental health disorder, diagnosed as vascular dementia with depressed mood, was not until January 2013, over 49 years after service. Accordingly, service connection for a psychiatric disability on the basis that such disability became manifest in service and persisted, or for psychosis on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309) is not warranted. The Board has reviewed the statements and hearing testimony from the Veteran's spouse indicating that he has a psychiatric disability that is related to the stabbing incident and psychiatric hospitalization in service and the statements of the Veteran's daughter, reported to the 2018 VA clinician, have also been considered. The Veteran's spouse and daughter are laypersons and have not demonstrated or alleged expertise in establishing, or determining the etiology of, a psychiatric diagnosis. Those are medical questions beyond the realm of common knowledge and incapable of resolution by lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran's spouse and daughter are competent to report his observed symptoms, they are not competent to diagnose the Veteran with a mental disorder related to service as they lack the requisite training or expertise. Therefore, the opinions of the Veteran's spouse and daughter have diminished probative value. The Board assigns greater probative value to the service records, which note the Veteran denied suicidal ideation and stated that the only reason he attempted suicide (took the pills) was to attract attention of people and expedite his separation from service; the May 1978 VA examination report, over 14 years after the Veteran's separation from service, which notes he was well adjusted, responded appropriately and was emotionally stable; the nearly 5 decades between the Veteran's service discharge and the initial January 2013 treatment record showing evidence of a psychiatric disorder; and the May 2018 VA opinion that the Veteran's vascular dementia with depressed mood is less likely as not caused by his service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where a Veteran failed to account for a lengthy time period between active military service and initial symptoms of the disorder). The May 2018 VA examiner, in opining that the Veteran's vascular dementia with depressed mood is less likely as not caused by his service, acknowledged that the Veteran is not a reliable historian because he suffers from vascular dementia and is unable to report his history and symptoms. However; based on interview of the Veteran and his daughter and review of the Veteran's medical history, the examiner explained that the record shows the Veteran underwent psychiatric hospitalization in service for attempted suicide as a means to facilitate his hardship separation, the Veteran denied any further hospitalizations since then and did not engage in any further mental health treatment other than brief counseling in the mid 1990's, had a "very successful work history" and had been married for 43 years to his current wife. The May 2018 opinion is based on an accurate medical history, includes citation to clinical findings and is by a medical professional who is competent to provide it. This is the most probative evidence in the matter and, as there is no competent (medical) evidence to the contrary, it is persuasive. Finally, regarding the finding of a personality disorder in service (November 1963 Certificate showing diagnosis of emotionally unstable personality, acute, severe, manifested by impulsivity, extreme marital discord, depression and suicidal gesture); it is noted that personality disorders are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). While service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder), by superimposed disease or injury, the Board finds no evidence of additional disability due to in-service aggravation of any personality disorder by superimposed disease or injury during service. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As such, there is no basis for service connection for personality disorder. In conclusion, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable; and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.