Citation Nr: 22017361 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-00 121A DATE: March 24, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a back disability is remanded. FINDING OF FACT An acquired psychiatric disorder, to include PTSD, has not been shown to have manifest in service or otherwise be related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1982, with additional Reserve service through June 2003. In November 2018, the Veteran testified at a personal hearing before the undersigned and a transcript of that hearing is associated with the record. In April 2019, the Board remanded the appeal for additional development. In July 2020, based on this development, the Board denied the claims for entitlement to service connection for an acquired psychiatric disorder, a back disability, a right shoulder disorder and a left shoulder disorder. The Veteran appealed the denial of his claims to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's July 2020 decision and remanding the appeal to the Board for readjudication consistent with the JMR. The Board also observes that at the beginning of the appeal, the Veteran was represented by The American Legion. Thereafter, the Veteran appointed attorney, Joseph R. Moore, as his representative, in a November 2021 VA Form 21-22a, effectively revoking the prior representation by The American Legion. Accordingly, the Board recognizes Joseph R. Moore as the Veteran's current representative in connection with these claims. See 38 C.F.R. § 14.631 (f)(1) (unless a claimant specifically indicates otherwise, the receipt of a new POA executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney.) Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. A veteran will be 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was clearly and unmistakably not aggravated. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear and convincing burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of clear and unmistakable evidence). It is an onerous evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be undebatable. See Cotant v. West, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A veteran's lay statements concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Supporting medical evidence is needed to establish the presence of a preexisting condition. Crowe v. Brown, 7 Vet. App. 238 (1994). 38 C.F.R. § 3.304 (b)(1) (regarding the presumption of soundness) provides: History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease (emphasis added). The term active military service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the Veteran's ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). 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; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 1. Entitlement to service connection for an acquired psychiatric disorder including PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. 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. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to a 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 a 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 a veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 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. 38 C.F.R. § 3.304(f)(3). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). The Veteran does not allege that he engaged in combat or that his stressors to support a diagnosis of PTSD is due to fear of hostile military or terrorist activity. Rather, he claims that his PTSD is due to being harassed by his non-commissioned officer (NCO) during active duty. The record indicates that the Veteran's PTSD is likely due to childhood trauma, and therefore, preexisted his service entirely. The Veteran has described being raised in an abusive setting including experiencing early childhood sexual trauma. Specifically, a VA examiner in December 2015, diagnosed PTSD with depressive symptoms due to childhood trauma. This finding does not suggest that the Veteran had PTSD in service. PTSD can manifest many years after service. Stressor events can occur both in service and outside of service. In the Veteran's case, the evidence clearly reveals a severe stressor event prior to service which developed, over time, to PTSD. The finding clearly indicates that the Veteran has PTSD because of his childhood, not during service, providing evidence against this claim. A review of the service treatment records shows that prior to enlistment in September 1977, the Veteran denied a history of mental health problems and none was reported. Furthermore, there is no indication of any disqualifying mental health defects as of the date of the examination. Accordingly, based on a detailed review of this record, the Veteran's post-service lay report of preservice medical history is insufficient to conclude that an acquired psychiatric disorder clearly and unmistakably preexisted active service. See Paulson, supra; see also Crowe, supra. As there is no evidence of a psychiatric diagnosis prior to service, an aggravation analysis is not appropriate. PTSD can develop at any time. In this case, there is significant evidence against a finding that the Veteran had PTSD when he entered service many years ago. The Veteran's own prior statements, as noted above, provide evidence against his current claim. The service treatment records for the Veteran's period of active duty service from July 1978 to July 1982, document no complaints, history or findings consistent with an acquired psychiatric disorder or report of his claimed stressors, and on separation from service he was psychiatrically evaluated as normal. Beyond this, the Veteran's Reserves service records reflect no complaints, history or findings consistent with an acquired psychiatric disorder. On re-enlistment examination in June 1982, the Veteran was psychiatrically evaluated as normal and he denied a history of frequent trouble sleeping, depression or excessive worry and nervous trouble. Similarly, on examination of the Veteran in June 1973, May 1984, December 1990, December 1995, and July 2000, he was psychiatrically evaluated as normal. Moreover, in reports of medical history in December 1990, December 1995, and July 2000, the Veteran consistently denied a history of frequent trouble sleeping, depression or excessive worry and nervous trouble. After service, VA treatment records show that the Veteran initially sought treatment for a mental health disorder in 2014, many years after service. The Veteran reported an extensive history of childhood sexual trauma and abuse. He also related being bullied by senior officers during service. The records reflect diagnoses of depressive disorder, adjustment disorder with anxiety and depression with chronic stressors. Symptoms of PTSD were noted. On VA examination in December 2015, the Veteran reported being harassed and bullied by his senior NCO during service. The incidents he described included threats of punishment, finding fault with minor omissions, being yelled at and being given two non-judicial punishments (NJPs) that were unjustified. The Veteran denied feeling he was in danger of serious physical injury or death from the NCO. The examiner concluded that the reported in-service stressor, being harassed by the NCO, did not meet Criterion A to support a diagnosis of PTSD, but it was sufficient to cause a significant, permanent aggravation of his previously existing PTSD from childhood. The examiner noted that the in-service incidents described by the Veteran did not constitute assault and the Veteran did not report feeling that he was in danger of serious physical injury or death from said NCO. Moreover, there did not appear to have been any downturn in the Veteran's performance during active duty service indicative of mental health/behavioral problems. Instead, the service records supported a finding that the Veteran's abilities were respected by peers and others in his command. A VA psychiatrist in October 2019 noted the Veteran's report of PTSD and depression since he was bullied by a USN senior chief petty officer for two years and feeling that his life was threatened at times. The clinician noted an assessment of unspecified anxiety with PTSD symptoms, and unspecified depression. While the Veteran is competent to report that he was bullied in service by his NCO, and he is competent to report that he felt threatened and depressed due to the in-service harassment, the Board finds that the Veteran's vague, inconsistent statements made decades after service separation, in the context of other, more contemporaneous histories by the Veteran that do not mention these alleged events or psychiatric symptoms during or soon after service, render him an unreliable historian in reporting either the claimed stressor or his psychiatric history. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that "memory hinges on recency" and that earlier statements are generally more trustworthy than later ones); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim; Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability); Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). This is not simply a finding of a lack of evidence that supports this claim, but evidence in the form of the Veteran's own prior statements that provides highly probative evidence against this claim. Simply stated, based on a detailed review of the record and the Veteran's statements over time, the Board makes the factual finding that the Veteran's statements about what happened to him in service are inaccurate. This conclusion is based on conflicting statements from the Veteran and the persuasive medical evidence. In this regard, throughout the Veteran's active duty service and Reserves service, including in July 1978, July 1982, June 1973, May 1984, December 1990, December 1995, and July 2000, he repeatedly denied any mental health symptoms, no incidents of bullying or harassment were recorded, and he was psychiatrically evaluated as normal. Significantly, when the VA examiner interviewed him, the Veteran specifically denied feeling he was in danger of serious physical injury or death from the NCO. Moreover, the VA examiner indicated that there were no markers during active duty service or other evidence of behavioral changes. Consistent with the examiner's conclusion, as noted, the service treatment records do not show mental health complaints or treatment, providing significant factual evidence against this claim that the Board cannot ignore, in several instances coming from the Veteran himself overall several years. The Board finds the opinion of the VA examiner who found that the Veteran's reported in-service stressor did not meet Criterion A to support a diagnosis of PTSD, to be more persuasive and probative than the Veteran's assertions as to his described stressor and the impairment resulting from that stressor. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Veteran's medical records show a diagnosis of PTSD due to childhood trauma and military trauma. However, there is no credible evidence linking the Veteran's diagnosis of PTSD to traumatic events in service, and his reported in-service stressor has been determined to be insufficient to support a diagnosis of PTSD. While the Veteran may now have PTSD caused by his childhood, he did not have PTSD in service, therefore, it could not be aggravated by service. In any event, the Veteran's statement regarding what occurred to him during service, and his reaction to those events, are not credible, therefore, any medical opinion that is based on those statements has low probative weight. The Board cannot ignore the Veteran's own prior statements which consistently provide evidence against his own claim. As the record is absent a finding of PTSD related to an in-service stressor, service connection is not warranted for PTSD. With regard to the Veteran's claim for service connection for an acquired psychiatric disability other than PTSD, although the Veteran has a diagnosis of an acquired psychiatric disorder, initially diagnosed many years after service discharge, as noted, the Veteran has not shown any in-service symptoms or diagnosis of any acquired psychiatric disorder. The Veteran did not report experiencing any in service symptoms of psychiatric disorder during service and his June 1982 separation examination indicated that he had a normal psychiatric evaluation, and he denied a history of depression or nervous trouble of any sort, providing more evidence from the Veteran himself that the problem has not been caused or aggravated by service. In the JMR filed with the Court, the parties agreed that the Board's July 2020 decision contained inadequate reasons and bases because it failed to address evidence in the record relating a mental disorder the Veteran's reported bullying by his NCO. Specifically, the October 2019 VA psychiatry treatment note indicating a history of PTSD and depression since the Veteran was bullied in service. However, the VA psychiatrist's report appears to be solely based on the Veteran's lay statements regarding his psychiatric condition, which the Board has found to be not credible, as opposed to a diagnosis made by a medical provider. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). As noted, the Veteran's current reports of onset of psychiatric symptoms in service are contradicted by the service treatment records and the Veteran's statements contemporaneous with service and after service. Thus, October 2019 VA psychiatry treatment note has minimal probative value and is insufficient to place the nexus evidence in favor of the claim. The medical provider can not make a factual finding that the events the Veteran has cited in service occurred. That finding must be made by the Board. Consequently, the Board gives more probative weight to the December 2015 VA opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In sum, the most competent medical evidence fails to show that the Veteran's reported in-service stressor was sufficient to meet the criteria for a diagnosis of PTSD nor does it demonstrate that his current mental health disorders had onset in service or are related to any aspect of the Veteran's service. Beyond the above, the Veteran's statements about what occurred in service are not credible. The facts of this case and the Veteran's own prior statements dictate the outcome of this decision, not the medical opinions of what did, or did not, occur during service many years ago. Given the foregoing, the Board finds that the most persuasive evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, and the claim must be denied. See 38 U.S.C. § 5107(b); Lynch, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disorder 2. Entitlement to service connection for a left shoulder disorder 3. Entitlement to service connection for a back disability The Veteran contends that he developed low back and bilateral shoulder disorders due to wear and tear from the performance of his duties as a mechanic during active duty. Specifically, at the November 2018 Board hearing, the Veteran asserted that his disabilities were due to bending, twisting, heavy lifting, and manual labor during service. In the August 2021 JMR, the parties determined that the Board erred insofar as it relied on the December 2015 VA examination to deny the claims. The parties agreed that the December 2015 VA examination was inadequate as the examiner did not consider or take into account the Veteran's lay assertions that his back and shoulder problems had onset in service. The parties agreed that the Veteran needed to be afforded a new VA examination citing the Court's decision in Miller v. Wilkie, 32 Vet. Ap. 249 (2020) for the proposition that "the proper remedy is to order a new examination where a VA medical examiner fails to address the Veteran's statements about medical history and the Board does not address the credibility of those statements."). Notwithstanding the factual findings above, consistent with the terms of the August 2021 JMR, a remand is warranted to afford the Veteran new VA medical examination containing complete and adequately reasoned nexus opinions. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the shoulder and back disorders on appeal, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release forms, request all identified pertinent medical records. If possible, the Veteran (or his representative) should get these records and submit them himself to expedite the case. This would help the Board greatly. 2. Schedule the Veteran for an examination by an appropriate clinician to address the claims for service connection for bilateral shoulder and back disabilities. The claims file must be thoroughly reviewed by the examiner in connection with the examination. All tests and studies deemed necessary should be conducted and all findings should be reported in detail. Following review of the claims file and an examination of the Veteran, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that any current shoulder and/or back disability found on examination is related to the Veteran's service, including as due to overuse/wear and tear incurred during the performance of his duties as a mechanic, or to any injuries incurred therein, or developed within one year of discharge from active duty service in July 1982. Please explain why or why not. In formulating the opinion, the examiner is asked to comment on the service treatment records, to specifically include an August 1979 service treatment record that showed complaints of right shoulder pain with an inability to raise the right arm for prolonged periods without pain. The examiner is also asked to comment on the post-service treatment records that show the Veteran injured his shoulders in January 2002, when he fell on ice while riding a 2-wheel bicycle at work; treatment for a torn left shoulder in May 2002 and June 2002; treatment for a torn right rotator cuff in 2005, 2015 and 2016, and a treatment for the back in 2014. The examiner is advised that regardless of documentation in the service treatment records, the Veteran is competent to report that he suffered right shoulder and/or back pain during service and has had continued symptoms since that time. However, there are indications that the Veteran's statements regarding what occurred during service are not accurate. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.