Citation Nr: 0000006 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 95-38 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) and a psychiatric disorder secondary to service-connected lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ralph G. Stiehm, Associate Counsel INTRODUCTION The veteran had active service from June 1983 to April 1987, and with the Army National Guard from September 1988 to April 1989. He also had periods of active duty for training and inactive duty for training which are not specified in the claims file. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 1998, the Board remanded this case for further development. The RO completed that development, whereupon this case is once again before the Board. FINDING OF FACT The veteran does not currently have an acquired psychiatric disorder related to service or to a service-connected disability. CONCLUSION OF LAW An acquired psychiatric disorder, including post-traumatic stress disorder and a psychiatric disorder secondary to service-connected lumbosacral strain, was not incurred in or aggravated in service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.310 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for service connection of a psychiatric disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. The Board is also satisfied that all the facts relevant to this claim have been properly and sufficiently developed. Service connection may be granted for a disorder that was incurred in or aggravated during the veteran's active duty service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Certain disorder, including psychoses, are presumed to have been incurred in service if manifested within a year of separation from service to a degree of 10 percent or more. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, a disease which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). The criteria for the adjudication of service connection for claims for PTSD have changed. Under the criteria in effect prior to March 7, 1997, the regulations in effect pertaining to PTSD were: Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Additionally, if the claimed stressor is related to the claimant having been a prisoner-of-war, prisoner-of-war experience which satisfies the requirements of § 3.1(y) of this part will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (as in effect prior to March 7, 1997). In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision in Cohen v. Brown, 10 Vet. App. 128 (1997). The regulations were made effective from the date of the Cohen decision. Those regulations provide as follows: Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.124(a) of this chapter; 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. If the evidence establishes the veteran engaged in combat with the enemy and the claimed stressor is related to this combat, in the absence of clear and convincing evidence to the contrary, and provided that the clamed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (as in effect from March 7, 1997). Service medical records contain no evidence of a psychiatric disorder in service. The veteran contends, however, that he suffers from post-traumatic stress disorder and from depression secondary to his service-connected lower back disability. A June 1993 entry in treatment records reflects a conclusion that the veteran had dysthymia secondary to lower back pain. However, following receipt of this evidence, a comprehensive examination was deemed to be in order and a December 1993 VA psychiatric examination revealed an Axis I diagnosis of only polysubstance abuse. A June 1994 discharge report similarly revealed diagnoses of alcohol dependence and polysubstance abuse. A July 1994 VA general medical examination on the other hand, revealed a diagnosis of anxiety disorder, as well as a history of alcohol abuse and polysubstance abuse. A report of that examination does not reflect an opinion relating anxiety disorder to the veteran's service or to a service-connected disability. Entries in treatment records from December 1995, however, make reference to depression secondary to back pain. In February 1996, the veteran was afforded two VA examinations by two different examiners. One examiner, who provided an examination of systemic conditions, concluded that there was evidence of a severe psychosocial disease, but that it could not be attributed to the veteran's service- connected conditions. The other examiner, who provided a psychiatric examination, indicated that the veteran admitted to problems with moods since six years of age that were "exacerbated or aggravated by his association military service" as well as other factors. That examiner, who provided Axis I diagnoses that included dysthymic disorder, also stated: "[T]he question of whether [the veteran's] nervous condition is secondary to his low back pain is already answered by the aforementioned history wherein this veteran apparently had some depressive episodes even prior to his military service. His depressive episodes currently appear to be aggravated by his inability to get employment despite his desire to be employed in the past and he has not been able to stay on a particular job in the past because of his chronic back problem." The report of the psychiatric examination leaves unclear whether it contains an opinion being offered by the examiner as opposed to a mere reiteration of a history offered by the veteran. More importantly, it is unclear as to whether the examiner was attempting to relate a psychiatric disorder to the veteran's service or to a service-connected disability. Due to the apparent inconsistencies in the medical evidence, as set forth above, the Board remanded this case to the RO in May 1998 in order to clarify the nature and etiology of any psychiatric disorder, if present. In July 1998, the veteran was afforded a VA examination by a board of two psychiatrists, one of which was the same examiner who conducted the psychiatric examination of the veteran in February 1996, as reported above. At that time, the veteran was noted to be casually dressed, looking clean and verbalizing no specific concerns. The examiner noted that the veteran drifted from one subject matter to another in terms of his response, but was noted to have some definite cognitive impairment in terms of giving sequential response to what was asked, and his ability to grasp the questions was somewhat impaired. His sensorium also appeared to be clouded. The veteran admitted to using drugs which was noted to have been a factor in his responses. The veteran's memory was noted to be faulty for both recent, remote, and intermittent events. The veteran responded to questions in an indirect, tangential, least descriptive manner. It was noted that the veteran's claims folder was reviewed along with the reports of previous VA compensation and pension examinations. The examiners concluded that no definitive conclusion could be reached at that time regarding psychiatric disability in view of the veteran's mental condition and due to the fact that he was on drugs. The assessment was deferred and the recommendation in terms of properly adjudicating the case was that the veteran should be admitted for a period of observation when the veteran was not on drugs to get a clear picture of his mental status while drug-free. Based on the foregoing, the veteran was hospitalized for observation in September 1998 in order to be able to form "a clear picture of the veteran's mental status when not using any drugs." On mental status examination, the veteran was described as well groomed. He displayed no abnormal movements. He was cooperative and alert and a little anxious at the beginning. He made good eye contact. His mood was described as sad with congruent affect. His speech was fluent and of normal rate and volume. His thought processes were goal directed. He displayed no delusion. He had questionable auditory hallucinations. He denied suicidal and homicidal ideation. While hospitalized, the veteran participated in milieu and group therapy. He was administered psychology and neuropsychiatric testing. Neuropsychiatric testing revealed no signs of significant impairment in cognitive functioning and it was noted that while the veteran may exhibit some memory problems at times, it was likely associated with marijuana and benzodiazepine abuse. It was noted that his dysthymia and anxiousness improved while hospitalized, and he was noted to have "detoxed" without complications. A discharge report for that period of hospitalization reflects an Axis I diagnosis of polysubstance abuse and an Axis II diagnosis of a personality disorder, not otherwise specified (NOS). A review of the veteran's September 1998 hospitalization report was conducted and in a November 1998 report, the diagnoses of Axis I polysubstance abuse and Axis II personality disorder, NOS, were confirmed. In reviewing the record on appeal, the Board notes that there is no current medical evidence of a diagnosis of PTSD. Further, although the veteran was recently diagnosed as having a personality disorder, as noted above, personality disorders are not disabilities for which compensation may be paid under current regulations. Further, although disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected (see 38 C.F.R. § 4.127 (1998)), there is no competent medical evidence that the veteran has a mental disorder superimposed upon the personality disorder. With respect to the question of whether the veteran currently has an acquired psychiatric disorder related to service or to a service-connected disability, the Board must conclude, based on a careful review of the record as summarized above, that a preponderance of the evidence shows that he does not have such a disorder. In this regard, the Board notes that the record does contain at least two VA progress notes which indicate that the veteran had dysthymia or depression related to back pain. There is also a diagnosis of anxiety. However, the Board also notes and the record indicates that the veteran has a significant history of polysubstance abuse which the most recent VA examiners obviously felt interfered with obtaining a true picture of the veteran's mental status and which led to the conclusion that the veteran should undergo a period of observation and evaluation while free of drugs. Significantly, following extensive testing, observation, examination, and review of the claims folder, including the reports of VA examinations and VA progress notes contained therein, the board of two psychiatrists conferred and concluded that the veteran did not have an acquired psychiatric disorder, instead indicating that the veteran had polysubstance abuse and a personality disorder. Since this final conclusion of both psychiatrists reflects consideration of the entire claims file, as well as observation of the veteran during the period of a week of hospitalization, the Board finds this evidence must be accorded greater weight than either the June 1993 or December 1995 progress notes. After consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD and as secondary to a service- connected disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER The claim for service connection for an acquired psychiatric disorder, including post-traumatic stress disorder and a psychiatric disorder secondary to service-connected lumbosacral strain, is denied. S. L. KENNEDY Member, Board of Veterans' Appeals