Citation Nr: 21041077 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-42 203 DATE: July 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The most probative evidence does not show a current PTSD diagnosis. 2. A psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against finding that a current psychiatric disorder was incurred in or is related to service. 3. The Veteran's alcohol abuse disorder is a primary disability that is barred as a matter of law and was not secondary to a service-connected disability or aggravated beyond normal progression by service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army Reserves and National Guard with active duty from December 2003 to March 2005 and active duty for training from February 2003 to July 2003 and September 2006 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) from a December 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in January 2021, when the Board reopened the claim for service connection for PTSD and adjustment disorder with depressed mood and remanded the matter for additional evidentiary development. The Board recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2012). 1. Entitlement to service connection for an acquired psychiatric disorder Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires a medical diagnosis of PTSD 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. 38 C.F.R. § 3.304(f). Direct service connection for disability resulting from a veteran's own drug or alcohol abuse is precluded for VA benefit claims filed after October 31, 1990. Compensation cannot be awarded under 38 U.S.C. §§ 1110, 1131 and 38 U.S.C. § 105 (a) for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id. Service connection for alcohol abuse disorder may be established if the alcohol abuse is secondary to, or as a symptom of, a service-connected disability. See Allen, 237 F.3d 1368 at 1375. A veteran must adequately establish, through clear medical evidence that an alcohol abuse disability is secondary to or caused by a primary service-connected disorder, and not due to willful wrongdoing. Id. at 1381 The Veteran asserts, in essence, that he suffers from a psychiatric disorder, including PTSD, that is related to stressor events that occurred during active duty in 2004 during active duty as a convoy security escort in Iraq, during which an improvised explosive device (IED) destroyed a vehicle in his convoy and injured fellow service members. See June 2010 statement and February 2018 Board hearing transcript. In the June 2010 claim, he indicated that he received psychiatric treatment from 2005 to the present. During the February 2018 hearing and September 2010 and August 2014 VA examinations and January 2013 private examination, he asserted he had never received treatment for mental health concerns. He testified in February 2018 that his psychiatric symptoms began after his discharge from active duty. He reported current sleep problems described as waking up during the night; difficulty interacting with others, such as talking to himself and getting fixated on thoughts of being in Iraq; being "probably" less social; a temper with certain people when he becomes impatient but does not engage in fighting; not "liking" stores without knowing why; and being more withdrawn and guarded. The Board notes that during a September 2020 VA medical screen for alcohol abuse, the Veteran denied drinking in the past year. To the extent the Veteran's statement was intended to establish a sustained period of abstinence from alcohol, the Board finds the statement is not credible, as it is inconsistent with VA treatment records contemporaneous to that record and within one year prior to September 2020, including those in October 2019 and March 2020, in which the Veteran reported drinking alcohol four or more times per week in the past year, reported 7 to 9 drinks containing alcohol on a typical day and 6 or more drinks weekly and refusing alcohol counselling. See Madden v. Gober, 125 F.3d at 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Caluza v. Brown, 7 Vet. App. 498 (1995). After reviewing the record, the Board finds that the preponderance of evidence is against finding that service connection is warranted for an acquired psychiatric disability, to include PTSD. Service personnel records confirm that the Veteran had active duty service from December 2003 to March 2005, which included service in an imminent danger pay area, as indicated on the Veteran's DD Form 214. Service personnel records do not document combat medals or combat service. Service treatment records are silent for complaints, treatment or findings related to psychiatric symptoms. The Veteran's February 2005 active duty discharge examination shows the Veteran reported his health stayed the same during the deployment and he did not seek or receive medical treatment. Post-deployment health assessment questionnaires in February 2005 and October 2005 indicate the Veteran reported he did not seek or receive medical treatment or mental health counseling; his health was excellent and stayed the same/improved; and mental health referral was not indicated; he also reported he did not see anyone wounded, dead or killed, or fear he was in danger of being killed, or was in any destroyed military vehicles or closely inspect any during the deployment. One month after active duty discharge, April 2005 VA treatment shows the Veteran denied complaints, any active medical issues and history of mental illness. Medical records prior to his 2010 claim for service connection, including those in April 2005, January 2006, July 2008, January 2009 and January 2010, show the Veteran denied a current mental health condition or behavioral health treatment, and VA medical screens for depression in September 2006, September 2007, May 2010 and July 2010 were negative. The first indication of a psychiatric condition is July 2010 VA treatment indicating the Veteran was interested in establishing mental health treatment and August 2010 VA treatment indicating that mental health evaluation showed no evidence of a mental health condition, that the Veteran reported he sought the evaluation to help substantiate his claim for service connection for PTSD, and that the Veteran declined follow-up mental health treatment. The first medical of a diagnosed psychiatric condition is the September 2010 VA examination report showing a tentative diagnosis of adjustment disorder with depressed mood. The record shows current diagnoses of adjustment disorder with depressed mood, as noted in a September 2010 VA examination report; bipolar disorder and borderline personality traits, as noted in a January 2013 private medical evaluation; and alcohol abuse disorder, as noted in August 2014 and August 2019 VA examination reports and January 2013 private medical opinion. The Board notes that social Security Administration (SSA) records, including those associated with the record subsequent to the Board's January 2021 remand, indicate that the Veteran's SSA disability benefits claim based on a primary diagnosis of sprains and strains and secondary diagnosis of unspecified arthropathies was denied in September 2012 and December 2012 decisions. Those records show that July 2012 and November 2012 medical evaluations indicate a diagnosis of alcohol dependence based on a history of maladaptive alcohol use. While the July 2012 evaluation provided a provisional diagnosis of anxiety disorder not otherwise specified with features of PTSD, the evaluator noted it was not a confirmed diagnosis because the Veteran was currently abusing alcohol and a significant period of abstinence from alcohol was needed to determine the actual presence of mood symptoms. The November 2012 evaluator indicated that the Veteran did not satisfy the diagnostic criteria for anxiety-related disorders and alcohol/substance addition disorder. The record reflects conflicting findings as to whether the Veteran is diagnosed with PTSD. While a January 2013 private clinician diagnosed PTSD, VA examiners in September 2010, August 2014 and August 2019 concluded the Veteran did not meet the diagnostic criteria to support a PTSD diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM). After reviewing the evidence, the Board finds that the most probative evidence weighs against finding that PTSD is currently diagnosed. A January 2013 private clinician diagnosed PTSD and concluded the Veteran shows clear symptomatology and stressors compatible with PTSD, accompanied by alcohol dependence and morose regression into a state of isolation, and poor functioning since service in Iraq that is directly related to service, including being in combat, seeing people mutilated and seeing severed heads. He disagreed with a September 2010 VA examiner's conclusion that the reported stressor was not a sufficient stressor to diagnose PTSD and, instead, concluded that the stressor criteria was met by the Veteran's description of "being stunned" by the IED incident, being in a combat area during a time of war, witnessing a friend hit by a bomb, receipt of the combat action badge and anxiety symptoms since service. The examiner indicated that the Veteran reported re-experiencing events, avoidance, arousal problems, dissociative reactions, sleep problems, anger difficulties, problems with focus and concentration, some startle reactions, and hypervigilance. He indicated the Veteran reported his impairment of functioning is 6 out of 10. Three VA examiners found the Veteran did not meet all of the diagnostic criteria for PTSD diagnosis. The September 2010 VA examiner concluded the Veteran did meet the criteria for a PTSD diagnosis because he did not describe the type of intense emotional reaction required for a stressor event; that there were no current symptoms of persistent re-experiencing of the reported traumatic event; and that psychometric test results (MMPI-2) did not show significant distress or impairment in social, occupational or other important areas of functioning, although he noted the results may be invalid due to the Veteran's inconsistent responses to similar items interspersed throughout the test. During the examination, the Veteran described the stressor incident as an IED hitting a buddy, Specialist Jones, whose first name he could not remember but with whom he bunked in a tent; being on scene after the injury and seeing his buddy torn up; witnessing chaos and shouting; reacting a "little bit" at the time but later was "stunned", which still bothers him every "now and then"; and being "kind of" nervous that other similar things could occur. The examiner indicated that the reported sleep problems suggest no more than fleeting distress and occasional mild intrusive thoughts; that discomfort was not a description of avoidance but rather reaction to situations that the Veteran would be exposed to frequently in his daily life and be unlikely to persist over time and unlikely in the absence of other re-experiencing and hyperarousal symptoms that the Veteran was not reporting; and that the reported startle response is not a described exaggerated response. He attributed the Veteran's anxiety symptoms to incidents other than the identified trauma that existed prior to service. Regarding depression, he noted that the Veteran voluntarily reported that his feelings of depression are directly related to a loss of job, financial problems and relationship problems and, although the Veteran later described his reported depression as being from over in Iraq, the Veteran offered no connection between the two. The examiner noted that the Veteran reported drinking a case of beer over several days on the weekend and occasionally drinking during the week. The August 2014 and August 2019 VA examiners also found the PTSD criteria were not met. The August 2014 VA examiner indicated that the Veteran met the diagnostic criteria of directly experiencing a traumatic event based on the reported IED explosion and of marked alterations in arousal and reactivity associated with the stressor, evidence by hypervigilance and sleep disturbance but that the Veteran did not endorse trauma re-experiencing symptoms or avoidance of trauma-related cues, or significant functional impairment associated with the reported symptoms of anxiety, sleep disturbances and mild hypervigilance. He indicated the psychometric assessment was completed using the MMPI-2, the symptom profile was valid and within normal limits and it did not reveal emotional distress or functional impairment associated with the mental health concerns. The August 2019 VA examiner concluded that the Veteran met the criteria of a stressor event of directly experiencing a traumatic event related to the Veteran's fear of hostile military or terrorist activity and marked alterations in arousal and reactivity associated with the traumatic event, evidenced by irritable behavior and angry outburst of more than one month and that causes clinically significant distress or impairment in functioning but did not meet the criteria of intrusive symptoms, persistent avoidance of stimuli and negative alterations in cognitions and mood associated with the traumatic event. Both the 2014 and 2019 VA examiners disagreed with the January 2013 private clinician's positive PTSD diagnosis. Both examiners found the 2013 PTSD diagnosis was inconsistent with the collateral medical records and results of psychometric testing, including negative PTSD screens in April 2005, September 2006 and September 2007, meaning the Veteran denied all PTSD-related symptoms; a positive PTSD screen in August 2012 but which also showed the Veteran declined referral for mental health care; and an August 2010 comprehensive medical assessment that found no mental health condition. The September 2019 VA examiner also questioned whether the January 2013 diagnosis of a trauma related disorder such as PTSD was appropriate at that time, explaining that the record did not show evidence that the clinician quantified the average volume and frequency of alcohol consumed reported by the Veteran and the Veteran was abusing alcohol at that time. The examiner indicated that since the Veteran was diagnosed with alcohol use disorder, he was precluded from making other mental health-related diagnoses under the DSM-5 criteria. He explained that he was unable to accurately assess functional impairment or distinguish symptoms of an active alcohol use disorder from other mental disorders because alcohol is known to cause and/or aggravate symptoms related to mood (depression, anxiety, dysphoria, irritability, etc.) and sleep, and is known to correlate with chronic anger problems, isolative behavior, reduced cognition (concentration and memory) and reduced motivation. He noted that 6 or more months of alcohol abstinence was needed before reattempting psychological evaluation for disability purposes. Additionally, the September 2019 VA examiner questioned the validity of the information noted in the 2013 opinion, explaining that the findings were contradicted by psychological testing performed during the subsequent August 2014 VA examination which showed no evidence of significant psychopathology and VA treatment showing the Veteran had no contact with any VA mental health provider since the August 2014 VA examination. The Board finds the 2014 and 2019 VA examiner's conclusions that the Veteran is not diagnosed with PTSD under the DSM criteria to be the most probative and persuasive. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The examiners evaluated the Veteran's reported symptoms and claimed in-service stressor incident; supported the finding with collateral medical records, including service treatment records and medical treatment which does not show any mental health complaints or treatment prior to 2010; applied objective psychometric testing that showed normal results; and provided a full explanation for why it was inappropriate to render a PTSD diagnosis at that time, given that the Veteran's alcohol abuse disorder was active, which prevented an accurate assessment of the Veteran's functional impairment and symptomatology at that time. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the Board affords less probative weight to the September 2010 VA opinion and January 2013 private opinion. The objective testing performed during the September 2014 examination was noted to possibly reflect invalid testing results due to the Veteran's inconsistent responses, while the January 2013 private PTSD diagnosis was based primarily on the Veteran's reported medical history and symptoms, rather than objective psychometric test findings, did not reference specific medical evidence in the record, including negative psychiatric complaints and findings prior to the 2010 claim; relied on the inaccurate factual premise that the Veteran received a Combat Action Badge; and was based on symptomatology and functional impairment during an active period of alcohol abuse. See 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."); LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of lay history unenhanced by any additional medical comment by the examiner, is not competent medical evidence); Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Additionally, although the 2013 private opinion was rendered by a master's level psychologist, the VA examiners were Ph.D. psychologists, which the Board finds had greater skill and education in diagnosing a current psychiatric condition under the DSM criteria. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); see also Nieves-Rodriguez, 22 Vet. App. at 302-04. Accordingly, the preponderance of probative evidence is against finding that the Veteran met the diagnostic criteria under the DSM to support a current diagnosis of PTSD. As an acquired psychiatric disorder was not diagnosed in service or within the year following service, competent evidence linking a diagnosed acquired psychiatric condition to service is needed to substantiate the claim. On this question, the preponderance of evidence is against the claim. A September 2010 VA examiner opined that adjustment disorder with depressed mood was less likely than not related to service. He reasoned that the Veteran's mild symptoms and functional impairment were associated with current life stressors, including personal relationship issues, and the condition had not association to military service. Addressing reported anxiety symptoms, the examiner concluded that the Veteran's fleeting anxiety symptoms were normative and insufficient to merit a mental health disorder diagnosis. The Board finds the September 2010 VA opinion probative and persuasive, as it was based on a review of the record, reflects consideration of the Veteran's reported symptoms and medical history, and is supported with reasoned medical explanations that is consistent with the evidence. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no opinion addressing adjustment disorder to the contrary. The January 2013 private clinician diagnosed bipolar disorder; however, the clinician did not provide any explanation to support the diagnosis or link the condition to service, and there is no evidence in the record suggesting an association to service. Thus, the opinion is not probative evidence of a link to service. The January 2013 clinician also diagnosed borderline personality traits, which he opined developed prior to service and, although not caused by service, was exacerbated by service. However, the opinion was not supported by any rationale or explanation for the conclusions reached; thus, the Board finds the opinion is not probative or persuasive evidence to establish service connection. See Nieves-Rodriguez v. Peake, at 302-04 (2008). Moreover, personality disorders are not diseases or injuries for VA compensation purposes and generally may not be service-connected; and in this case, there is no evidence superimposing a mental disorder upon the personality disorder, upon which service connection may be established. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. With respect to alcohol abuse disorder, the preponderance of evidence shows the Veteran's alcohol abuse disorder is a primary disorder that preexisted service and is not secondary to service. While the January 2013 private clinician opined that the Veteran's diagnosed alcohol abuse disorder was secondary to his PTSD, service connection for PTSD has not been established. Thus, service connection for alcohol abuse disorder as secondary to PTSD is not available. Further, the preponderance of evidence shows the alcohol abuse disorder is a primary disability that preexisted service and was not aggravated by service. The August 2014 and August 2019 VA examiners opined that the preexisting alcohol abuse disorder was less likely than not caused or worsened beyond natural progression by service. The August 2014 VA examiner explained that the alcohol abuse was a primary disability that was not associated with trauma exposure; that there is no indication that another mental health condition preceded the alcohol use/abuse; and that there is no indication the Veteran's symptoms were more severe now than prior to service. He noted that the Veteran reported he began alcohol use at age 13, was arrested for a DUI three times in 2000, 2009 and 2010, and lost his license in 2010 after his third DUI. The August 2019 VA examiner reasoned that the Veteran reported he began drinking at age 13 prior to service; that the Veteran has not had any contact with VA medical providers from the time of the August 2014 VA examination to the time of the August 2019 examination; and that the August 2014 VA examination showed no evidence of significant psychopathology. A March 2021 VA examiner opined that the claimed alcohol use disorder was less likely as not incurred in or caused by an acquired psychiatric disorder. He reasoned that the adjustment disorder diagnosed by the 2010 VA examiner was related to current stressors, rather than his military service; that both the 2014 and 2019 VA examiners diagnosed alcohol use disorder but concluded the disorder existed prior to service and there was no evidence to suggest it was exacerbated beyond its normal progression by service; that medical records indicate problematic drinking behaviors but fail to show complaints, diagnosis or treatment of a verifiable mental disorder; that the 2014 and 2019 VA examiners concluded the 2013 private assessment was inconsistent with all of the Veteran's medical records and that the 2014 VA examiner found the 2013 opinion was inconsistent with both the Veteran's subjective presentation in the evaluation and his profile on an objective measure of psychological distress. The Board finds the combined August 2014, August 2019 and March 2021 VA opinions are the most probative and persuasive evidence addressing alcohol abuse disorder, as they are based on a thorough review of the evidence of record, including medical treatment history and substance abuse history, and are supported with reasoned medical explanations that are consistent with the evidence in the record. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The combined opinions conclude that the alcohol abuse disorder is a primary disorder that preexisted service, was not associated with a trauma disorder, was not preceded by a mental health condition, was not shown to have worsened during the claim period and thus was not aggravated beyond normal progression by service. There is no opinion in the record indicating the alcohol abuse disorder was aggravated by service. The Board acknowledges the Veteran's belief that he is diagnosed with an acquired psychiatric disorder that is related to or secondary to service, he has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a psychiatric condition are matters not capable of lay observation and require medical expertise to determine. Thus, the Veteran's opinion as to the diagnosis and etiology of a current psychiatric disorder is not competent medical evidence. The Board finds the VA examinations and post-service treatment are significantly more probative than the lay assertions. In sum, the preponderance of evidence is against finding that an acquired psychiatric disorder was incurred in or is related to service or a service connected disability or that the preexisting alcohol abuse disorder was worsened by service, and the claim for service connection for an acquired psychiatric disorder, to include PTSD, is denied. In reaching this decision, the Board considered the benefit of the doubt doctrine; however, as the preponderance of evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.