POSTTRAUMATIC STRESS DISORDER (PTSD)
MICHAEL LANE · 2023 · Case ID: 23019570
Summary
The veteran served in the Army National Guard with periods of active duty for training between 1978 and 1982. The veteran appeals the denial of service connection for PTSD, major depressive disorder (claimed as secondary to PTSD), opioid dependence, cocaine dependence, and tobacco use disorder. The Board found the veteran did not meet the definition of a "veteran" for VA purposes because his service was limited to active duty for training and inactive duty training, and he did not have any periods of active duty. The Board also found that the claimed PTSD stressors—witnessing a fellow soldier killed and jumping from a vehicle about to crash—were not corroborated by credible evidence and were inconsistent with the veteran's own statements and service records. Specifically, payroll records indicated no training in July 1981 when the alleged death of a fellow soldier occurred. The Board denied PTSD due to the unverified stressor. The claim for major depressive disorder was denied because it was predicated on the unverified PTSD stressors and the veteran did not have veteran status for the relevant periods. The claims for opioid and cocaine dependence were denied as they are not disabilities for which service connection can be granted, and the evidence did not establish they were incurred in the line of duty. The tobacco use disorder claim was denied as the evidence did not show it was related to active service other than in-service cigarette smoking, which is prohibited from service connection under 38 U.S.C. § 1103.
Rationale
Veteran did not meet "veteran" status due to service being limited to active duty for training.; Claimed stressors (witnessing soldier killed, jumping from vehicle) were not corroborated by credible evidence.; Veteran provided inconsistent information regarding claimed stressors.; Payroll records indicated no training in July 1981 when alleged death occurred.
Full Decision Text
Citation Nr: 23019570 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 14-35 529A DATE: March 29, 2023 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for major depressive disorder, to include as secondary to PTSD, is denied. Entitlement to service connection for opioid dependence and cocaine dependence is denied. Entitlement to service connection for tobacco use disorder is denied. FINDINGS OF FACT 1. The appellant did not have at least 90 days of active duty. 2. The evidence persuasively weighs against a finding that his claimed stressor of witnessing a fellow soldier killed is corroborated by any credible supporting evidence. 3. The evidence persuasively weighs against a finding his claimed stressor of being in a motor vehicle that was about to crash into a tree is corroborated by any credible supporting evidence. 4. The evidence persuasively weighs against a finding that the appellant witnessed a fellow soldier killed during a period of active duty for training or inactive duty training or that the appellant was in a motor vehicle that was about to crash into a tree during a period of active duty for training or inactive duty training. 5. The evidence persuasively weighs against a finding the appellant had a depressive disorder a period of active duty for training or inactive duty training or that the major depressive disorder is related to active service. 6. Service connection is not in effect for PTSD. 7. The appellant's opioid dependence and cocaine dependence were not in the line of duty. 8. The weight of evidence is against a finding that the appellant's current tobacco use disorder is related to active service other than any in-service cigarette smoking. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 101, 105, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.304 (2023). 2. The criteria for entitlement to service connection for major depressive disorder, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 101, 105, 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.304 (2019). 3. The criteria for entitlement to service connection for opioid dependence and cocaine dependence have not been met. 38 U.S.C. §§ 101, 105, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.301, 3.303, 3.304 (2023). 4. The criteria for entitlement to service connection for tobacco use disorder have not been met. 38 U.S.C. §§ 101, 105, 1103, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.300, 3.301, 3.303, 3.304 (2023). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty for training from January 1978 to June 1978, from June 1979 to July 1979, in June 1980, in June 1981, and from July 1982 to August 1982, and had additional service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 determination issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the appellant failed to report for a hearing to be held in Washington, DC before a Veterans Law Judge. Therefore, no further development with regard to a hearing is necessary. In February 2019, July 2020, and September 2021, the Board remanded the claim of service connection for an acquired psychiatric disorder for further development. A July 2021 VA medical opinion shows that a June 2021 VA examiner opined that PTSD and in-service stressors were contributory factors to with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 determination issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the appellant failed to report for a hearing to be held in Washington, DC before a Veterans Law Judge. Therefore, no further development with regard to a hearing is necessary. In February 2019, July 2020, and September 2021, the Board remanded the claim of service connection for an acquired psychiatric disorder for further development. A July 2021 VA medical opinion shows that a June 2021 VA examiner opined that PTSD and in-service stressors were contributory factors to the development of major depressive disorder. Pursuant to Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Board will also consider whether the major depressive disorder is secondary to PTSD. The Veteran is claiming service connection for PTSD and depression. The medical evidence since the Veteran filed his informal claim for service connection for depression in September 2012 shows diagnoses of opioid dependence, cocaine dependence, and tobacco use disorder. The Board finds that Veteran's service connection claim includes any current psychiatric disability that is reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Pursuant to Clemons, the Veteran's claim includes substance-related disorders though he did not explicitly claim service connection for these disorders and, as such, the issues are as stated on the first page of this decision. The appellant's service treatment records are not available. VA has a heightened duty to assist the Veteran in developing his claims since government records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The appellant and his representative have not raised any issues with the duty to notify or duty to assist as to these claims. 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 duty to assist argument). Service Connection 1. Entitlement to service connection for PTSD Governing law and regulations To establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Special rules apply to National Guard and Reserve service. The first step in any claim for veterans' benefits is whether the claimant is considered a "veteran" as defined under VA law. Service in the National Guard, even during period of active duty for training or inactive duty for training, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Active duty for training is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Thus, to establish "veteran" status with is considered a "veteran" as defined under VA law. Service in the National Guard, even during period of active duty for training or inactive duty for training, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Active duty for training is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Thus, to establish "veteran" status with respect to service in the National Guard, and eligibility for service connection, the record must show that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of active duty for training. See 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.1, 3.6; see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Alternatively, service connection can be granted for an injury (but not a disease) incurred during inactive duty for training. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Currently, service connection is not in effect for any disabilities. Thus, the appellant has not achieved "veteran" status. Service connection may also be warranted 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). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the 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 an appellant is related to that claimant'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 the appellant'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 the claimant's service, the appellant's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). This liberalized regulation does not apply in this case, however, since the appellant is not claiming a stressor based on fear of hostile military or terrorist activity. In non-combat cases of PTSD involving an allegation of personal assault, more particularized requirements are established to verify whether the alleged stressor actually occurred. Patton v. West, 12 Vet. App. 272, 278-80 (1999). In this regard, evidence from sources other than a claimant's service records may corroborate the appellant's account of the stressor incident. 38 C.F.R. § 3.304(f)(3). This liberalized regulation does not apply in this case, however, since the appellant is not claiming a stressor based on a personal assault. Analysis The appellant's service personnel records reflect that he had almost five months of active duty for training from 1978 and additional periods of active duty for training from 1979 to 1982. Though he had over 90 days of active duty for training, he did not have any periods of active duty. As noted above, service connection is not in effect and the appellant has not achieved "veteran" status. The July 2021 VA PTSD examination report reveals a diagnosis of PTSD. Therefore, Hickson element (1), current disability, is met. The next matter is whether there is any credible supporting evidence that the claimed stressor of seeing a fellow soldier killed occurred. The appellant claims that he witnessed the death of T.E.C. in 1981. In June 2022, a professional researcher from the Veterans periods of active duty for training from 1979 to 1982. Though he had over 90 days of active duty for training, he did not have any periods of active duty. As noted above, service connection is not in effect and the appellant has not achieved "veteran" status. The July 2021 VA PTSD examination report reveals a diagnosis of PTSD. Therefore, Hickson element (1), current disability, is met. The next matter is whether there is any credible supporting evidence that the claimed stressor of seeing a fellow soldier killed occurred. The appellant claims that he witnessed the death of T.E.C. in 1981. In June 2022, a professional researcher from the Veterans Benefits Administration, Office of Field Operations, Military Records Research Center reviewed the Official Military Archives Report casualty database. The researcher noted that the database shows that T.E.C. was killed in July 1981 from injuries sustained in a motor vehicle accident. The appellant, however, has given inconsistent information about the nature of T.E.C's death. VA treatment records reveal that in June 2012 the appellant reported that he saw a friend get hit by a truck in 1982 while serving in the Army National Guard. Private treatment records reflect that the appellant reported that he saw a friend be hit by a truck in 1982 during service. VA treatment records show that in February 2013 the appellant reported non-combat trauma in the military and that afterwards he had trouble dealing with the death of one of his friends when a jeep was turned over in an accident. At the July 2021 VA examination, the appellant reported that he witnessed a fellow soldier who was his friend get struck and killed by a car while directing traffic. In a November 2021 statement, the appellant reported that his unit was returned to a city from Fort Meade when T.E.C. was struck and killed on a parkway. Moreover, the appellant was not on active duty for training in July 1981. Most importantly, the appellant's payroll records reflect that he had no drill performance in July 1981. The Board gives great weight to the payroll records. Therefore, the evidence persuasively shows that the appellant did not have inactive duty training in July 1981. The evidence persuasively weighs against a finding that his claimed stressor of witnessing a fellow soldier killed is corroborated by any credible supporting evidence. As for the other stressor, the appellant asserts that in November 2021 statement that in the fall of 1981 he was on training at Fort Meade. He indicated that he was on a mission on a dirt road when he saw that his vehicle was heading toward a tree and that he jumped out a vehicle. A statement of medical examination and duty status dated in July 1983 shows that the appellant had lower back strain at Fort Pickett after in being in a jeep. This service record does not pertain to an event at Fort Meade in 1981. There is no other evidence that could potentially corroborate this stressor. The evidence persuasively weighs against a finding his claimed stressor of being in a motor vehicle that was about to crash into a tree is corroborated by any credible supporting evidence. Private treatment records and the July 2021 VA examination report reveal a diagnosis of PTSD. Any such diagnosis is not based upon any independently verified in-service stressor. Because the diagnosis of PTSD is based on an unconfirmed stressor, service connection for PTSD cannot be granted. 38 C.F.R. § 3.304(f). Given that the appellant is contending that his current PTSD is related to active service, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the following relationship between PTSD and events in service fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Accordingly, the evidence persuasively weighs against the claim for service connection for PTSD, and it is denied. 2. Entitlement to service connection for major depressive disorder Governing law and regulations Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease .3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Accordingly, the evidence persuasively weighs against the claim for service connection for PTSD, and it is denied. 2. Entitlement to service connection for major depressive disorder Governing law and regulations Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding active duty for training, the presumptions available to a claimant are limited. Unless and until "veteran" status is established for any period of active duty for training, the presumptions of soundness and aggravation, as well as the presumptions of service connection for certain diseases, such as psychosis, under the statute and pertinent regulations, do not apply. See 38 U.S.C. §§ 1111, 1153, 1137 (2012); Bowers v. Shinseki, 26 Vet. App. 201, 206-07 (2013). A claimant whose claim is based on a period of active duty for training can never be entitled to the presumptions of service connection for chronic diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis VA and private treatment records and the July 2021 VA PTSD examination report reveals a diagnosis of major depressive disorder, to include major depressive disorder with psychotic features. Thus, Hickson and Wallin element (1), current disability, is met. As for Hickson element (2), in-service disease or injury, the appellant alleges that he witnessed a fellow soldier killed and that he had to jump from a vehicle during training before the vehicle hit a tree. The appellant is competent to report these events, but the Board does not find him credible in reporting either event. As stated above, the Board found that there is no credible supporting evidence of these events. Equally important, as described above, the appellant has given inconsistent information about the death of T.E.C. who died in July 1981. Moreover, the appellant was not on active duty for training or inactive duty training in July 1981. The evidence persuasively weighs against a finding that the appellant witnessed a fellow soldier killed during a period of active duty for training or inactive duty training or that the appellant was in a motor vehicle that was about to crash into a tree during a period of active duty for training or inactive duty training. Furthermore, private treatment records reflect that in May 2012 the appellant reported that that his psychiatric symptoms began in 1983 after military service. In May 2013, the appellant noted that he had psychiatric symptoms since 1983 after military discharge but that he really had those symptoms all his life. The appellant is competent to report that he had psychiatric symptomatology in service, but the Board does not find him credible because of his inconsistent reporting regarding the death of T.E.C. and the evidence showing that he was not on active duty of active duty for training or inactive duty training or that the appellant was in a motor vehicle that was about to crash into a tree during a period of active duty for training or inactive duty training. Furthermore, private treatment records reflect that in May 2012 the appellant reported that that his psychiatric symptoms began in 1983 after military service. In May 2013, the appellant noted that he had psychiatric symptoms since 1983 after military discharge but that he really had those symptoms all his life. The appellant is competent to report that he had psychiatric symptomatology in service, but the Board does not find him credible because of his inconsistent reporting regarding the death of T.E.C. and the evidence showing that he was not on active duty for training or inactive duty training in July 1981 when T.E.C. died. As the evidence persuasively weighs against a finding the appellant had a depressive disorder during a period of active duty for training or inactive duty training. Accordingly, Hickson element (2) is not met. Hence, because Hickson element (2) is not met, Hickson element (3), evidence of a nexus between a current disability and service, cannot be satisfied either. Although the June 2021 VA examiner opined in a July 2021 medical opinion that the in-service stressors were contributory factors to the development of major depressive disorder, this opinion is predicted on the occurrence of these stressors. As noted above, the evidence persuasively weighs against a finding that these in-service stressors occurred. Although certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service, the presumption of service does not apply in this case, where the appellant only served on active duty for training and inactive duty training. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Therefore, service connection cannot be established for the major depressive disorder with psychotic features based on any claimed continuity of symptomatology. Given that the appellant is contending that his depressive disorder is related to active service, the Board notes that the relationship between a depressive disorder and events in service falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1733 n. 4. The evidence persuasively weighs against a finding the major depressive disorder is related to active service. The evidence persuasively weights against the claim for service connection for major depressive disorder on a direct basis, and it is denied. With regard to secondary service connection, as determined above, the Veteran is not service connected for PTSD. Although the June 2021 VA examiner opined in July 2021 that PTSD was a contributory factor to the development of major depressive disorder, Wallin element (2), a service-connected disability, is not met. Hence, service connection for major depressive disorder as secondary to PTSD cannot be granted. 3. Entitlement to service connection for opioid dependence and cocaine dependence Governing law and regulations No compensation shall be paid if the disability resulting from injury or disease in service is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1311. Direct service connection may be granted only when a disability was incurred or aggravated in 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. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). Analysis VA and private treatment records reveal post-service diagnoses of opioid dependence and cocaine dependence. Regarding these diagnoses, those disorders are not disabilities for which service connection can be granted. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301. Under the circumstances here presented, there is no legal basis upon which the appellant can establish entitlement to service connection for opioid dependence and cocaine dependence. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994 other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). Analysis VA and private treatment records reveal post-service diagnoses of opioid dependence and cocaine dependence. Regarding these diagnoses, those disorders are not disabilities for which service connection can be granted. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301. Under the circumstances here presented, there is no legal basis upon which the appellant can establish entitlement to service connection for opioid dependence and cocaine dependence. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The benefit sought on appeal is accordingly denied. 4. Entitlement to service connection for tobacco use disorder Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The provisions of 38 U.S.C. § 1103 prohibit service connecting a disability as a result of disease or injury attributable to the use of tobacco products during a veteran's active service. The term "tobacco products" includes cigarettes. 38 C.F.R. § 3.300(a). This regulation does not prohibit service connection if the disability resulted from a disease that is otherwise shown to have been incurred in service. The term "otherwise shown" means that the disability can be service-connected on some basis other than a veteran's use of tobacco products in service. 38 C.F.R. § 3.300(b). Analysis VA treatment records reveal a diagnosis of tobacco use disorder. The medical evidence does not show the appellant's current tobacco use disorder is related to active service other than any in-service cigarette smoking. Therefore, the evidence persuasively weighs against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cherry, D. 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.