Citation Nr: 1736655	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  06-34 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Michael A. Steinberg, Attorney-at-Law


ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1983 to May 1990.

This matter came to the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  In that decision, the RO denied four claims, including the Veteran's request for service-connected compensation for schizophrenia, panic disorder and depression.  Pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has broadly characterized the issue as a claim for any acquired psychiatric disorder.  Jurisdiction of the case was later transferred to the RO in Providence Rhode Island.  

This case has a long procedural history.  The Board remanded this appeal for further development in December 2009, September 2011, October 2012, January 2014 and March 2015.  The specific reasons for the requested development relevant to the resolution of this issue will be addressed in the analysis section of today's decision.  


FINDINGS OF FACT

1. A psychiatric disorder was not noted in the report of medical examination at the time the Veteran entered active military service.

2. There is not clear and unmistakable evidence showing that the Veteran's acquired psychiatric disorder preexisted service and was not aggravated by service.

3. The evidence is at least evenly balanced as to whether the Veteran experienced symptoms of PTSD and major depressive disorder during active duty service.


CONCLUSIONS OF LAW

1. The Veteran is presumed to have been in sound condition when he was examined, accepted and enrolled for service.  38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2016).

2. The record does not include clear and unmistakable evidence rebutting the presumption of soundness.  38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2016).

3. With reasonable doubt resolved in favor of the Veteran, an acquired psychiatric disorder was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide notice and assistance to claimants. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  As the Board is granting the Veteran's claim, further discussion of the VCAA is unnecessary. See Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). 


II.  Service Connection for a Psychiatric Disorder

Legal Principles

Service connection will be granted if the evidence demonstrates that a current disability is the result of an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship - or "nexus" - between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  Service connection is warranted for a disease first diagnosed after the claimant's discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Veteran's post-service VA mental health treatment records indicate several mental disorders including post-traumatic stress disorder (PTSD), schizophrenia, major depression, panic attacks, panic disorder, alcohol dependence, cocaine dependence and a personality disorder.  Two of the VA examiners who provided opinions on this case have questioned all of these diagnoses except for personality disorder and polysubstance abuse.  For reasons that will be explained when this decision describes their opinions in greater detail, the Board finds that this part of the respective examiners' opinions is inconsistent with its duty to resolve reasonable doubt in the Veteran's favor.  38 C.F.R. § 3.102 (2016).  

The Veteran's service treatment records include a report of hospitalization for drug overdose, treatment for alcohol abuse, and a report of medical history, dated April 1990, indicating that the Veteran had experienced depression or excessive worry.  The Veteran's medical examination at the time of his separation from active duty also noted anxiety.  

The evidence just described satisfies the current disability and in-service disease, injury or event requirements of the Veteran's claim.  Accordingly, the Veteran's claim depends on whether one of his current psychiatric diagnoses is related to his symptoms in service.  See Fagan, 573 F.3d at 1287.

It may be helpful to mention two additional legal principles before the Board proceeds to examine the evidence in this case.  

First, the Veteran has submitted statements indicating that he developed symptoms of PTSD because he was sexually assaulted by another soldier.  When a claimant contends that PTSD is due to an in-service personal assault, the lay testimony of the claimant is not, by itself, sufficient to establish the occurrence of the alleged in-service stressor.  38 C.F.R. § 3.304(f) provides that an account of a stressful incident may be corroborated by sources of information other than the Veteran's service records.  One category of evidence which, according to the regulation, may corroborate a claimed in-service stressor, is evidence of behavior changes following the claimed assault.  The regulation provides the following examples of behavior changes that may constitute credible evidence of a stressor: "a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes."  Id.

Secondly, the records of post-service VA mental health treatment and the reports of VA examiners indicate that at least one currently diagnosed mental illness (PTSD) may have existed before the Veteran joined the Army.  This evidence implicates the presumption of soundness.  See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012).  Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted and enrolled for service.  38 U.S.C.A. § 1111.  In this case, the indications of a pre-existing psychiatric disorder come from the Veteran's post-service VA mental health treatment records, not from the clinical evaluation report of the physician who examined the Veteran at the time of his enlistment in March 1983.  A medical history does not constitute a notation of such conditions for the purposes of the presumption of soundness. 38 C.F.R. § 3.304(b)(1).  Thus, the presumption of soundness applies in this case.

"When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service."  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added).  This is a difficult burden to overcome because the "clear and unmistakable" standard is a high one and because of the two-part nature of the burden.  Moreover, with respect to the "aggravation prong" of the burden, the Secretary is in the unusual position of being required to prove a negative.  See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) ("When the presumption of soundness applies, however, the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce evidence of aggravation.") (emphasis in original).

Factual Background

The Veteran's earliest post-service mental health records begin in November 2003.  According to progress notes, the Veteran tearfully described traumatic incidents in his childhood.  He said that his uncle encouraged the Veteran and his brothers to fight and would beat them if they refused to fight.  He sought treatment after experiencing intrusive thoughts of his traumatic upbringing.  The Axis I diagnoses were alcohol dependence, cocaine abuse and probable PTSD.  

A more thorough VA psychiatric health summary, dated February 2004, indicates homelessness, chronic addiction, unemployment, poor social support and poor self-management skills.  The note quotes the Veteran as saying that he started drinking when he was 14 years old and that drinking and using drugs were his only recreational activities.  He said he had been married in 1984, during his deployment to Germany, but he and his wife had divorced.  The Veteran described a suicide attempt in approximately 1985.  Progress notes from April 2004 indicates Axis I diagnoses of "schizophrenia, depression, panic attacks, PTSD, polysubstance dependence in remission since [November 2011]."  

As part of a claim for disability benefits from the social security administration, the Veteran reported to a mental health examination in July 2004.  According to the report, he smoked marijuana daily in his teens and, when he was in the service, he was drunk on a daily basis.  He started using cocaine in 1990, when he left the Army.  The examiner wrote, "In regards to the reported earlier diagnosis of PTSD, I asked him about the basis of this idea, and he alleges that he was beaten up by an uncle 'who beat us up if we didn't fight.'"  The Axis I diagnoses were major depression with psychotic features, recurrent type, relatively severe by history (versus schizo-affective disorder) reported history of cocaine and alcohol dependence, "clean and sober for nearly one year, he says."  The Axis II diagnosis was "probable personality disorder [not otherwise specified], with antisocial and paranoid traits"   

There are many subsequent VA mental health records and most of the information in them repeats the diagnoses and symptoms mentioned above.  It will be significant to the Board's analysis that VA mental health professionals continued to diagnose the Veteran with PTSD and major depression after describing his alcohol and drug abuse as being in "sustained remission."  After the Veteran moved from Rhode Island to Florida, VA mental health professionals in Florida continued to diagnose the Veteran with PTSD.  According to a November 2009 VA mental health consultation note, "Primary complaints are in anxiety spectrum and appear to be PTSD related."  

To help decide this claim, the RO arranged for the Veteran to be examined by a VA clinical psychologist in April 2011.  The examiner reviewed post-service treatment records and correctly noted that they did not mention military trauma, instead attributing PTSD to trauma in childhood.  The section of the report for identifying "PTSD Stressors" indicates "none", and the examiner later wrote that the Veteran "does not have PTSD and has no report of any stressors including childhood trauma."  The examiner's diagnosis was Axis I: polysubstance abuse disorder and alcohol dependence both in sustained remission and Axis II: Paranoid Personality Disorder with strong borderline traits.   The symptoms of the Veteran's personality disorder included poor coping, distorted perceptions of others, inability to hold a job, explosive anger, and inability to make good decisions.  

In December 2009, the Board reviewed the April 2011 VA examination report.  Noting post-service diagnoses for several current psychiatric disorders including major depressive disorder, general anxiety disorder, and PTSD, which the April 2011 report failed to address, the Board found the report to be inadequate.  The Board also recognized that, because the Veteran's psychiatric condition was described as normal on his 1983 entrance examination, an adequate opinion would address the application of the presumption of soundness.  

The Veteran was examined by another psychologist in November 2011.  According to the examiner's subsequent report, the Veteran did not have PTSD.  The diagnosis was polysubstance abuse.   The examiner indicated that the Veteran did not have more than one mental disorder.   

In his interview with the November 2011 VA examiner, the Veteran apparently denied a history of childhood physical or sexual abuse.  "Although his uncle taught him to fight, he did not believe he was ever abused."  He told the examiner that he grew up in the inner city "and we did a lot of fighting."  

The Veteran told the examiner that he has had girlfriends, but "I don't do too well with men."  When the examiner asked him why this was so, he described being sexually assaulted by another soldier in service.  He said, "I have been asked that question 8000 times and I never told anyone."    

The examiner rejected a diagnosis of PTSD based on his conclusion that the Veteran's statement about military sexual trauma was incredible.  "This is the first time MST has ever been raised as an issue."  The examiner wrote that the Veteran's responses to certain testing suggested that he "over-reported his psychopathology to such a degree that the profile and code type are not interpretable.  It is likely that this profile represents a significantly exaggerated picture of the veteran's current situation and problems, since he presents with an unusual number of psychological symptoms.  This extreme response set suggests that the veteran over-reported his symptoms, reflecting either 1) a 'plea for help' to insure [sic] that needs are not ignored or 2) a blatant attempt to distort responses for some situational reason."    

According to the examiner, "There were no records in the c-file suggesting the veteran has ever claimed [military sexual trauma].  His current claims of [military sexual trauma] are not considered to be credible."  

The examiner's opinion indicates that alcohol dependence is likely to be the same disorder the Veteran's experienced in service.  The examiner's opinion also relied on his rejection of the Veteran's account of the alleged sexual assault incident.  The examiner rejected depression as a diagnosis because "he was noted to have been actively using drugs and alcohol.  He was homeless and had significant legal problems as well as being unemployed.  The symptoms of depression were most likely associated with all of these issues.  There is no objective evidence to suggest the veteran experienced any psychosis within the first two years after his discharge."  
In his report, the examiner also reviewed "markers" or examples of information which may corroborate a claim of noncombat personal assault under 38 C.F.R. § 3.304(f).  The examiner wrote that the only "marker" described in the service treatment records was alcohol abuse.  

Based on the November 2011 examiner's opinion, the RO issued a new supplemental statement of the case denying service connection for a psychiatric disorder and this appeal returned to the Board.  In October 2012, the Board remanded the claim again, on the grounds that the Veteran had not been provided with specific VCAA notice concerning the potential sources of information listed in 38 C.F.R. § 3.304(f)(5), which may be used to corroborate allegations of in-service personal assault.  The Board further ordered the RO to obtain complete personnel records, make appropriate requests to the National Personnel Records Center (NPRC) to corroborate the Veteran's claimed stressor and to obtain SSA records.  After completing this development, the Board instructed the RO to obtain a new medical opinion. 

After mailing the notice letter to the Veteran, the RO received several letters supporting the Veteran's claim.  A letter from R.B. identified the author as the Veteran's former section chief when they were both deployed to Germany. R.B. wrote that, in 1986, another soldier, whom R.B.'s letter identified by name, sexually assaulted the Veteran when the Veteran was asleep.  When the Veteran woke up, he attacked the soldier and both of them spoke to their commander about the incident.  According to R.B., the commander addressed the incident informally by transferring the alleged assailant to Fort Benning, in Georgia.  R.B. wrote that the Veteran decided to take a whole bottle of pain pills to kill him self [sic], when [R.B.] and the first sergeant got to his house he was unconscious, so he was taken to the Bamberg hospital emergency room where he had his stomach pumped."  

Service treatment records include a record from a German physician, which appears to corroborate some aspects of R.B.'s letter.  A translation of the record indicates that the Veteran was admitted to the intensive care unit in April 1987; the diagnosis was drug overdose.  According to the note, the Veteran took 12 tablets of Benadryl and treatment consisted of gastric lavage and forced diuresis.
The RO received letters from R.W. and D.M., both of whom indicated that they served with the Veteran in the United States after he returned from Germany.  Both letters described the Veteran as upset and angry.  According to both letters, the Veteran gave the authors similar descriptions of the claimed sexual assault.  The RO also received letters from the Veteran's mother, who indicated that, during the Veteran's deployment to Germany, she would communicate with him by telephone and, based on their conversations, she concluded that he was increasingly nervous and upset.  The letter describes the Veteran's attitude, behavior and thoughts as healthier before he joined the Army than when he returned.

In August 2013, the RO obtained an addendum opinion from the VA psychologist who had examined the Veteran in November 2011.  This report addressed the letters from the Veteran's fellow soldiers.  The examiner's analysis of the letters was very thorough and he took a skeptical view of their authenticity based on a comparison of the handwriting on the signatures and respective envelopes.  According to the examiner, it was suspicious that R.B.'s letter indicates that employees of VA should contact him if they have questions about his letter when the letter does not provide contact information and the envelope which carried the letter had no return address.  The Board notes that the letter from R.W. also invites VA personnel to contact the author and does provide an address and telephone number.  But the August 2013 report does not mention this fact in the Veteran's favor.  

The August 2013 report addressed personnel records, which show behavioral changes and deterioration in work performance during the Veteran's military service.  Specifically, the Veteran was reduced in rank from E-4 to E-3 in July 1989 and promoted back to E-4 in March 1990.  He also received substance abuse awareness education and individual counseling in July and August 1989.  

Addressing the presumption of soundness, it was the examiner's opinion that the Veteran's psychiatric disorder clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, disease or event.  The report supported this conclusion with the following analysis of the Veteran's credibility: "The Veteran claimed MST [military sexual trauma] during the last C&P examination but he was not considered to be a reliable historian.  There were zero records indicating he had ever discussed or indicated MST.  He was noted to have PTSD secondary to childhood trauma.  In his two prior C&P examinations he downplayed childhood trauma and claimed the childhood issues were non-contributory to his current functioning and psychiatric problem.  He makes this claim in spite of the overwhelming amount of evidence from a number of mental health provider [sic] both inside the VA and outside the VA that clearly indicated PTSD secondary to childhood abuse."   

Once again, the RO denied the claim based on the examiner's opinion, and this appeal returned to the Board.  In January 2014, the Board reviewed the letters from D.M., R.B. and R.W.  The Board reasoned that it was significant that these letters had specifically identified the perpetrator of the alleged assault by name and, although it was unlikely that any record existed which could prove conclusively whether the incident took place, it was likely that the RO could find some record to verify whether or not the soldier had served with the Veteran at the relevant time and was transferred to Fort Benning after the incident, as R.B. had claimed.  The Board remanded the case with instructions to verify this information through the United States Army and Joint Services Records Research Center (JSRRC) and obtain a new medical opinion.  The Board's remand orders instructed the examiner to presume that the Veteran was in sound condition when he joined the Army.  

Unfortunately, the RO did not verify whether the relevant soldier served with the Veteran or was transferred to Fort Benning.  Instead, the RO issued a memorandum with the subject "Formal Finding of information required to corroborate the veteran [sic] allegation of posttraumatic stress disorder due to sexual assaults."  According to the memorandum, the Veteran served in Germany from January 1984 to June 1987.  Awards in the Veteran's personnel file suggested that he was an outstanding soldier prior to his deployment to Germany, but he was later reduced in rank from E-4 to E-3, effective July 1989 and was enrolled in alcohol and drug counselling in July of 1989.  The memorandum concluded, "There are some marks in the . . . personnel file and service treatment record which indicates a traumatic event might have occurred while [the Veteran] was in service."

The RO then obtained a second addendum opinion from the VA psychologist who had previously given opinions in November 2011 and August 2013.  In the examiner's opinion, "The etiology of the veteran's mental health symptoms and diagnoses are 100% related to childhood trauma, drug and alcohol abuse with an onset in adolescence and underlying personality characteristics."  Somewhat confusingly, in another part of his report, the examiner omitted childhood trauma and wrote that "100% of this veteran's psychiatric history can be attributed to two issues: 1) personality characteristics that are highly suggestive of an underlying personality disorder with cluster B traits and 2) pre-existing substance abuse disorder."  

The rationale for this conclusion was that the only mental health treatment in service was for alcohol abuse and other subsequent psychiatric diagnoses, according to the examiner, were inaccurate.  The examiner attributed psychotic symptoms in the post-service mental health records to the influence of drugs.  He attributed the diagnosis of depression to homelessness and drug and alcohol abuse.   Addressing the possibility of aggravation, the examiner wrote that the Veteran's "abuse of drugs and alcohol follows a normal progression of those who are addicted to substances."  He also wrote that the "extensive c-file records and review of the VA medical records do not substantiate the exacerbation of the pre-existing condition beyond normal progression."  

The examiner continued to reject the possibility of PTSD as a result of military sexual trauma.  "Given the veteran's severe history of substance use, performance on psychological testing, and review of all medical and c-file records, the veteran does not appear to be a very good historian and his credibility of reported MST or personal trauma are [sic] poor."  

The addendum also addressed the criteria for PTSD.  The examiner wrote that the earlier PTSD diagnosis "appears to have been made through the use of an unstructured interview with the veteran."   The examiner cited multiple articles indicating that alcohol use "mimics PTSD and makes preexisting disorders (e.g., PTSD) worse . . . ."  The examiner also indicated that PTSD and alcohol dependence symptoms overlap.  "As such, previously diagnosed PTSD was not deemed appropriate because of the significant use of substances by the veteran at the time of the diagnosis."  

Addressing the evidence of behavior changes in response to the claimed in-service stressor, the examiner wrote that there were no military or personnel records which mention an in-service assault.  "As previously noted, I still have some significant concerns for the lay statements noted within the C-file. . . Even if full benefit of the doubt is given to the authenticity of these lay statements, they are not sufficient to establish the veteran's claim for [military sexual trauma].  Every one of the signs, symptoms and behaviors noted in the records are clearly associated with alcohol dependency issues, drug abuse, and underlying personality characteristics."    

Based on the examiner's opinion, the RO denied the Veteran's claim and, once again, this appeal returned to the Board.  Reviewing the record, the Board noted the RO's failure to arrange for the JSRRC to determine whether the soldier identified in the various lay statements had been transferred to Fort Benning, as suggested by the Veteran.  But because the personnel records showed behavioral changes - i.e., being demoted in rank and enrolled in alcohol/drug counseling - the Board ordered a new opinion in which the examiner was instructed to assume that the sexual assault actually occurred as the Veteran says it did.  With those instructions, the Board remanded this appeal for the last time.

In March 2016, the RO obtained the most recent medical opinion from the psychologist who conducted the first VA examination in April 2011.  

In her report, the March 2016 examiner responded "yes" to the question, "Did any acquired psychiatric disorder clearly and unmistakably preexist active service?"  The examiner acknowledged that the Veteran received treatment for alcohol abuse in July and August 1989, but noted that "this is not considered in the line of duty or [subject to service connection]."  In the examiner's opinion, antisocial and borderline traits were reflected in the Veteran's behavior and these were not the result of the sexual assault in Germany.  Presumably to support this conclusion, the examiner noted that the Veteran did not lose rank permanently and was discharged with the rank of E-4.  

Based on the Veteran's statements about pre-service fighting, legal problems, abuse by his uncle, and the excessive use of drugs and alcohol, the examiner wrote that it was at least as likely as not that the Veteran had a personality disorder before he joined the Army.  She also quoted statements from the Veteran's mental health treatment records concerning similar events after his separation from service. 

Confusingly, given the examiner's affirmative answer to the first question in the RO's opinion request - i.e., that an acquired psychiatric disorder clearly and unmistakably preexisted service - the examiner answered the next question: "If neither an acquired psychiatric disorder or a personality disorder clearly and unmistakably preexisted service, then is it at least as likely as not that any current acquired psychiatric disorder was incurred in service, to include as a result of the reported (and conceded) in-service assault?"  She provided a negative answer.

To support this conclusion, the examiner cited statements from the Veteran attributing PTSD to traumatic events in childhood.  According to the examiner, post-service psychiatric symptoms "can be accounted for by other [diagnoses] to include personality disorder (antisocial) and bipolar disorder with psychotic features (hallucinations)."  The examiner mentioned the April 1990 separation examination report, which indicates that the Veteran's psychiatric condition was normal.  Acknowledging the anxiety symptoms noted on the separation examination form, the examiner wrote that the Veteran's trouble sleeping began within the previous two weeks and that sleep walking was noted in a report of medical history form at the time of the Veteran's entry into service.  

Despite the Board's order that the examiner accept, for the purposes of the requested opinion, the Veteran's statement that military sexual trauma actually occurred, the examiner wrote that "His current claims of [military sexual trauma] are not considered to be credible.  Though the Veteran claims [military sexual trauma] made it hard to deal with men, this is in direct opposition to his report of childhood upbringing and [history of] assaults and fighting . . . ."  

The March 2016 opinion quoted, but did not address, the portion of the Board's remand instructions asking for an opinion which comments "on all psychiatric disabilities diagnosed since December 2003 . . ."

Analysis

The medical reports obtained by the RO in this case, particularly the November 2014 addendum opinion, are thorough and persuasive in some of their criticisms of the Veteran's credibility.  It is true, as both examiners suggest, that the Veteran attributed his PTSD-like symptoms to traumatic events in childhood before asserting that his current symptoms were the result of military sexual trauma.  Without the presumption of soundness, this would be a much closer case.

But the evidence is clearly inadequate to rebut the presumption of soundness.  To deny the Veteran's claim, the Board must not only reject the Veteran's statements about his claimed in-service stressor, but find that VA has clearly and unmistakably proven that no pre-existing disability -including PTSD or major depressive disorder - increased in severity beyond its natural progression during active duty service.  In other words, even if the Veteran's has PTSD due to traumatic events in his childhood and the origin of his condition was completely unrelated to military sexual trauma, the Veteran will still be eligible for service-connected compensation for PTSD unless VA has clearly and unmistakably proven that PTSD due to childhood trauma was not aggravated by service.  

The August 2014 VA examiner addressed and attempted to meet this burden by arguing that all of the PTSD diagnoses previously entered by VA mental health treatment professionals were in error.  According to the examiner, the symptoms of PTSD and the symptoms of the Veteran's alcohol dependence overlap.  Moreover, alcohol abuse "mimics PTSD and makes preexisting disorders (e.g. PTSD) worse . . . ."  He therefore concluded that "previously diagnosed PTSD was not deemed appropriate because of the significant use of substances by the veteran at the time of the diagnosis."   

A medical opinion may be inadequate if it rests on an inaccurate factual premise.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  The examiner's rejection of the PTSD diagnosis is based on the inaccurate premise that previous diagnoses of PTSD mistook the Veteran's alcohol abuse symptoms for symptoms of PTSD.  This premise is inconsistent with multiple VA mental health progress notes which include both: (1) a diagnosis of PTSD; and (2) a clear statement that alcohol dependence was in "in full sustained remission" at the time of the PTSD diagnosis.  Moreover, the relevant VA mental health treatment professionals gave multiple diagnoses, including both PTSD and alcohol dependence.  If, as the examiner suggests, they were confusing symptoms of alcohol abuse for PTSD, it would be reasonable to expect the records to include only one diagnosis -PTSD.

The evidence concerning aggravation of pre-existing childhood PTSD is equivocal.  The report of medical history at the time of separation from service includes psychiatric symptoms which the Veteran did not mention on the similar form he completed when he joined the Army, including depression and excessive worry.  The letters of his mother and his fellow soldiers suggest that the Veteran progressively became more nervous, depressed and anxious during and after his deployment to Germany.  The extent of his drinking increased and there is contemporaneous evidence that his job performance suffered.  This evidence is inconsistent with a finding that pre-service PTSD "clearly and unmistakably" was not aggravated in service beyond its natural progression.  

"[E]ven if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight."  Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012).  No medical professional has opined that a current psychiatric disability is related to the Veteran's military service.  But the repeated and unsuccessful efforts of the VA examiners in this case to prove the contrary position, after five attempts, demonstrates that it is extremely unlikely that the presumption of soundness can be successfully rebutted under the facts of this case.

The Board has considered the possibility of further development, including a remand order to the RO to follow the January 2014 remand instructions to verify whether the soldier identified in R.B.'s letter was really transferred to Fort Benning after the claimed incident.  But because childhood PTSD is presumed to be service-connected unless and until the Secretary clearly and unmistakably proves lack of aggravation, even if this development discredited the Veteran's version of events, it would not successfully rebut the presumption of soundness.  Moreover, after making five attempts and specifically instructing the most recent examiner to assume that the alleged assault actually occurred, another remand would be inconsistent with the Board's duty to avoid development which can have no purpose but to obtain evidence against the Veteran.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). 

Because the presumption of soundness was not rebutted, the Veteran is presumed to have been in sound condition when he joined the Army. Thus, the service treatment records showing psychiatric distress in service satisfy the second element of the Veteran's claim for service connection - in-service incurrence or aggravation of a disease or injury.  See Gilbert, 749 F.3d at 1373.

The Board finds that the evidence is at least evenly balanced as to whether the Veteran's current psychiatric disability is related to his in-service symptoms.  The doubt resulting from this relative equipoise in the evidence must be resolved in his favor.  See 38 U.S.C.A. § 5107(b); see also Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits.").


ORDER

Entitlement to service connection for an acquired psychiatric disorder is granted.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s