Citation Nr: 22008093 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-58 735 DATE: February 11, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The probative evidence is against a finding that the Veteran has a psychiatric disorder that is related to service or caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty with the United States Marine Corps from May 1976 to November 1977. The Veteran testified in a video conference before the undersigned Veterans Law Judge in September 2019. A copy of the hearing transcript has been reviewed and is of record. The matter was previously before the Board in January 2020, February 2021, and June 2021 and remanded for further evidentiary development including obtaining adequate medical opinions. The matter is again before the Board for further appellate review. Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) The Veteran contends that his psychiatric disorder began in service and had continued to date. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disease (such as a psychosis) manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). Moreover, where a veteran served continuously for 90 days or more during active service, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current acquired psychiatric disorder originated from a personal assault and head injury in 1977 that occurred during an off base altercation while on active duty at Kaneohe Bay, Hawaii. Service treatment records (STRs) show that the Veteran was treated for a head injury at the Tripler Air Force Base in Hawaii. The Veteran also asserts that while assigned at Kaneohe, his wife and two year old daughter left him resulting in depression and attempted suicide; and that he was depressed for the remainder of his active duty service. Prior to the Veteran's separation from service, a September 26, 1977 progress note reveals that he was recommended for an administrative discharge by the Psychiatric department for alcoholism and inadequate personality. See STRs. An October 2009 post-service VA mental health note indicated that the Veteran had mood disorder due to general medical condition. A November 2009 VA mental health note similarly noted that the Veteran had mood disorder (depression) secondary to GMC (neck and back injury). See CAPRI. A September 2014 primary care note indicated a positive PTSD screen. See CAPRI. In a September 2014 psychiatric evaluation, the Veteran is noted as saying "I haven't done well since 1997. I need something for my nerves. I need something to help me cope with my panic attacks". He was treated for anxiety and mood disorder. See CAPRI. The Veteran was afforded a Mental Disorders Examination in September 2015. He was diagnosed with mood disorder due to general medical condition (GMC). The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner remarked that the Veteran's diagnosed mood disorder due to GMC is not related to his diagnosis of depression in service. The examiner reasoned that even though the Veteran had dealt with a divorce in the military, he was prepared to return to the military, post-divorce. The examiner further noted that the Veteran subsequently began treatment at the VA around 2007, after suffering two (2) accidents, in 2005 and 2007, which resulted in chronic pain, and an inability to work. The examiner further concluded that the Veteran's mood disorder was aggravated when a stepson suffered an accident and is quadriplegic. See September 2015 C&P Examination. In a December 2019 Mental Health Note, the psychiatrist Dr. R. E. L stated that the "Veteran is seen for 30 minutes; at least 16 of those minutes are devoted to supportive psychotherapy. He carries a diagnosis of schizoaffective disorder and is taking olanzapine 15 mg daily and hydroxyzine 50 mg at bedtime." See CAPRI. Following the Board's January 2020 remand instructions, the Veteran was afforded a VA examination in March 2020. The diagnosis was schizoaffective disorder, depressive type. The examiner noted that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran has had many significant events in his life that are more likely than not the cause of his mood disorder including physical abuse by his father, his personal alcohol abuse that he noted began in 1972 (prior to military service), his marriage and divorce from his first wife, his stepson's motor vehicle accident (MVA), his personal truck accident in 2005, his broken neck in 2007, and his stroke (about 4 to 5 years ago). The examiner reasoned that statements from the Veteran's service treatment records do not indicate mood symptoms or treatment for mental health only behavioral and alcohol abuse problems which led to his discharge (under honorable conditions) from the Marines. The examiner further opined that the Veteran's psychiatric condition was not secondary to his service-connected hearing loss and tinnitus. See March 2020 C&P Examination. The Veteran was afforded a VA examination in November 2021. The examiner confirmed a diagnosis of schizoaffective disorder, depressive type. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran experienced multiple serious stressors that were at least as likely as not the cause of his schizoaffective disorder; that the Veteran was in two major accidents in 2005 and in 2007 (2007 resulted in broken neck that made him unable to continue driving trucks for a living and began dealing with chronic pain); that the Veteran reported that he began mental health treatment after the truck wreck in 2007, experienced a stroke around 2015 and noted other significant stressors including his first marriage and divorce from 1982-1985 and his stepson's MVA in 2013 that caused his stepson to be a quadriplegic and is now deceased. The examiner stated that the Veteran was diagnosed with Mood Disorder Due to GMC in 2009 and 2015 and was diagnosed with schizoaffective disorder by Dr L. in August 2019 and by the examiner in March 2020. The examiner continued that the current evaluation confirms the diagnosis of schizoaffective disorder. The examiner explained that there is a 30 year gap between the Veteran's military service and his first treatment (self-reported in 2007 after his accident); and that during this 30 year period, the Veteran experienced multiple serious stressors that were at least as likely as not the cause of his schizoaffective disorder. The examiner further noted that the Veteran reported the onset of his symptoms during his first marriage but that the Veteran went on to have a successful second marriage (since 1985) and a successful career (26 years) until it ended due to his accident in 2007. The examiner concluded that as a result, it is less likely than not that the Veteran's schizoaffective disorder is incurred in or caused by military service. Regarding the theory of secondary service connection, the examiner opined that there is no recognized scientific connection between the service -connected hearing loss/tinnitus and the diagnosed schizoaffective disorder. Therefore, schizoaffective disorder is less likely than not proximately due to or the result of the Veteran's service connected conditions. The examiner further stated that the Veteran's schizoaffective disorder was not aggravated by his service-connected hearing loss and tinnitus. The examiner's rationale was that the Veteran's mood disorder/schizoaffective disorder has been treated since 2007 (by report) and 2009 (by record); and that the Veteran has not indicated on exam that his hearing loss or tinnitus are at all related or that they negatively impact his current mental health condition. The examiner explained that in 2011, the Veteran's diagnosis was mood disorder secondary to neck and back injury and that the Veteran's exam in 2015, similarly confirmed the diagnosis of mood disorder due to GMC (Diabetes and neck injury in 2007). The examiner concluded that these previous diagnoses support the opinion that the Veteran's schizoaffective disorder was not aggravated by his hearing loss or tinnitus. See November 2021 C&P Examination. In weighing the medical opinions of record, great weight is given to the combined opinions of the September 2015, March 2020, and November 2021 VA opinions. The VA examiners' opinions were based on examination of the Veteran, his reported history, and a review of the evidence of record. Moreover, to the extent that the Veteran believes that his current disability is related to service or to his service-connected disabilities, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of psychiatric disorders is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current acquired psychiatric disorders is not competent medical evidence. 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). Thus, the Board finds the opinion of the VA examiners to be significantly more probative than the Veteran's lay assertions. The Board acknowledges that the records indicate that the Veteran was discharged under Honorable Conditions due to alcoholism and inadequate personality. Under VA regulations, personality disorders are considered defects, and not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. Therefore, personality disorders cannot be service connected either directly or based on secondary causation or aggravation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. Congenital or developmental "defects," such as personality disorders, automatically rebut the presumption of soundness and are considered to have pre-existed service. 38 C.F.R. § § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a personality disorder is not the type of disease or injury related defect to which the presumption of soundness can apply); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (holding that the presumption of soundness does not apply to congenital defects). However, 38 C.F.R. § 4.127 provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. VAOPGCPREC 82-90 (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Therefore, although 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, even if aggravated in service, a diagnosed psychiatric disorder may provide a basis for service connection if the evidence demonstrates the psychiatric disorder was superimposed upon a veteran's diagnosed personality disorder during service. Here, although the evidence of record clearly shows the Veteran was administratively discharged due to alcoholism and inadequate personality in 1977, and that he continues to be diagnosed with various personality disorders since that time, there is no objective evidence of record indicating any diagnosed psychiatric disorder was superimposed on his personality disorder in service. There is no dispute that the Veteran has a current personality disorder and that he had one in service, but the law simply does not provide benefits for a personality disorder under these circumstances. The Court has held that where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, service connection cannot be awarded by law and regulation, as personality disorders are not a disease or injury subject to service connection, and the claim is denied. 38 U.S.C. §§ 105, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.301, 3.303. In addition, the evidence weighs against a finding that the Veteran has a current diagnosis of PTSD. Although a September 2014 VA records reveal a positive screen test for PTSD, it is unclear whether the full criteria of the DSM was considered with this diagnosis or if the Veteran's entire history was considered. Thus, the Board places limited weight of probative value on this evidence. Conversely, VA treatment records and the September 2015, March 2020 and November 2021 VA examinations did not support a diagnosis of PTSD. These examination reports reflect a full examination of the Veteran and consideration of his military experiences as reflected by his record and his extensive treatment records. Therefore, the Board places great weight of probative value on their conclusions. As such, the Board finds that the evidence is against a finding that the Veteran has a diagnosis of PTSD. A current disability is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). As a preponderance of the evidence is against a finding that the Veteran has a current PTSD diagnosis, service connection cannot be established for that disorder on any basis. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In sum, for all the reasons described above, the Board concludes that while the Veteran has a current diagnosis of an acquired psychiatric disorder, the evidence weighs against a finding that the current psychiatric disorders began during service or are otherwise related to service and/or caused or aggravated by his service-connected disabilities. Accordingly, the claim for service connection for an acquired psychiatric disorder to include PTSD must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990) DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.