Citation Nr: 1754137	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-05 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), other specified trauma- and stressor-related disorder, anxiety disorder not otherwise specified (NOS), depression NOS, cannabis use disorder, alcohol abuse, and other specified personality disorder with mixed personality features. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. D. Bruce, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 2009 to February 2010, to include service in Iraq, on active duty for training from October 2004 to April 2005, and active duty for special work from July 2006 to June 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office.

In August 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.


FINDING OF FACT

The probative, competent evidence is against a finding that the Veteran has any psychiatric disorder other than cannabis use disorder or other specified personality disorder with mixed personality features.  


CONCLUSION OF LAW

The criteria for service connection for a psychiatric disorder have not been met.  38 U.S.C. §§ 105, 1110, 5107 (2012); 38 C.F.R. §§ 3.301, 3.303, 4.9 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes that the Veteran has made some general allegations regarding the age and qualifications of VA examiners and the amount of time they spent evaluating him.  In that regard, the United States Court of Appeals for the Federal Circuit has held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion.  Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010).  VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor or other medical specialist.  See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007).  Additionally, the Board may assume a VA medical examiner is competent.  Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error).  Furthermore, to the extent that the allegations relate to the proper conduct of a medical examination, the examiner has some discretion in the manner it is conducted.  See, e.g., Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (cautioning the Board against substituting its medical judgment for that of a medical professional without "point[ing] to a medical basis other than the panel's own unsubstantiated opinion").  The examiners reviewed the Veteran's pertinent medical history, conducted clinical evaluations of the Veteran, and provided adequate discussions.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  Accordingly, the Board finds no prejudice in proceeding with adjudication of the claim. 

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 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 condition 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) (2017) 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).  

The Veteran asserts that he has acquired psychiatric disorders, including PTSD, anxiety, and depression, related to his active duty service.  

Upon review, the Board finds that the most probative evidence does not reflect that the Veteran has any psychiatric disorder other than cannabis use disorder and other specified personality disorder with mixed personality features which, as explained below, may not be service connected in this case.  

The Veteran first underwent VA examination in connection with his claim in November 2012, at which time the examiner diagnosed only cannabis use disorder and opined that diagnoses of depression, anxiety, or PTSD could not be rendered without resorting to speculation.  In that regard, the examiner noted that the Veteran's self-report as to his symptoms was non-credible in that he made an unusual, unlikely, and inconsistent claim of mental health symptoms.  The examiner further indicated that the Veteran had been quick to discount his pre-military history as having any influence on his present day symptoms and attempted to attribute all of his current problems to his military service.  Additionally, objective testing reflected questionable validity.  

The Veteran next underwent VA examination in September 2015, and the examiner again diagnosed only cannabis use disorder and opined that a diagnosis for PTSD, anxiety, or depression could not be made without resorting to mere speculation due to the Veteran's questionable credibility regarding his symptoms.   The examiner noted discrepancies in the Veteran's self-reports to VA providers regarding drug use history, his dramatic and unusual description of symptoms, as well as invalid objective test results that were strongly suggesting of feigning of symptomatology.  One test yielded an invalid profile as a result of the Veteran's careful and attentive endorsement of an extreme number of deviant test items reflecting a very broad and unusual combination of psychological, cognitive, and somatic symptoms, as well as a number of items rarely endorsed by psychiatric inpatients with severe psychopathology.  The examiner opined that these results suggested that the Veteran very greatly exaggerated, if not feigned, his level of symptomatology in a manner similar to others seeking secondary gain and rendered his profile uninterpretable.

The Veteran most recently underwent VA examination in October 2015.  The examiner again diagnosed cannabis use disorder as well as other specified personality disorder with mixed personality features.  The examiner opined that the Veteran demonstrated Narcissistic and Histrionic personality features, and that his personality disorder features were likely to interfere with the way he interacts with others and participates in his environment, resulting in strained relationships and a lack of substantial social support.  The examiner reported that, during the examination, the Veteran made a number of reports that were contradictory to information documented in his medical record and, when confronted with the information, stated that he "lied" to previous examiners to "shut them up" because he was irritated by their questions.  Objective testing again yielded invalid and exaggerated results and the examiner found that no other diagnoses were warranted.

The Board notes that the Veteran's VA treatment record do reflect diagnoses of other acquired psychiatric disorders, including anxiety disorder NOS, depression NOS, alcohol abuse, and other specified trauma- and stressor-related disorder.  Upon review, however, the Board finds the conclusions of the November 2012, September 2015, and October 2015 VA examiners that the Veteran does not have any psychiatric disorder diagnoses other than a personality disorder and cannabis use disorder more probative than the findings noted in the treatment records.  In that regard, the findings made in conjunction with the VA examinations were the result of comprehensive psychological testing, consideration of the credibility of the claimed symptoms, and review of the entire record, and provide thorough rationales for the conclusions reached, whereas the Veteran's treating providers did not necessarily administer objective tests or consider the Veteran's credibility and, in any event, did not provide rationales for the diagnostic conclusions reached.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion).

To the extent that the Veteran himself has contended that he has any specific acquired psychiatric disorder, he has not shown that he has specialized training sufficient to diagnose psychiatric disabilities or to determine their etiology.  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, while the Veteran is competent to report symptoms, he is not necessarily credible and, in this case, has been inconsistent in such reports.  The diagnosis of a psychiatric disability is not capable of lay observation and requires expertise to determine.  Accordingly, the Veteran's opinion as to whether a disability exists and the etiology of such is not competent medical evidence.  

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. § 1110.  In the absence of proof of present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 (2017) requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).  Thus, as the competent evidence is against a finding of a current diagnosis of any psychiatric disorder other than cannabis use disorder and a personality disorder, it is unnecessary to address the remaining elements of the claim for service connection with respect to any other psychiatric disorders.  See Brammer, 3 Vet. App. at 225.  

With respect to cannabis use disorder, service connection may be granted only when a disability as incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs.  38 C.F.R. § 3.301.  As such, diagnosed disabilities of drug or alcohol abuse are not disabilities for which direct service connection may be granted.  38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301.

Similarly, with respect to the Veteran's other specified personality disorder, VA regulations state that personality disorders are not considered diseases or injuries for disability compensation purposes and, as such, may not be service connected.  38 C.F.R. §§ 3.303(c), 4.9.

Accordingly, the Board finds that the preponderance of the evidence is against the claim, and service connection for a psychiatric disorder is denied.  In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for a psychiatric disorder, to include PTSD, other specified trauma- and stressor-related disorder, anxiety disorder NOS, depression NOS, cannabis use disorder, alcohol abuse, and other specified personality disorder with mixed personality features, is denied.




____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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