Citation Nr: 1745331 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 16-40 702A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served in the United Stated Army between January 1966 and January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT There is no probative evidence of an acquired psychiatric disorder either currently or during active service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Legal Criteria Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In the absence of proof of a present disability, there is no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system and psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.384, the term "psychosis" is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the general legal criteria for service connection detailed above, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 5th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). Id. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis On the claim of service connection for a psychiatric disorder, the Veteran asserts that his psychiatric illness is "survivor's guilt" as result of his service. The Veteran asserts that because he trained combat medics who died in service, but that he himself did not serve in combat, he has "survivor's guilt." The Veteran's service treatment records are negative for psychiatric problems or a diagnosis of a psychiatric disability. Significantly, reports of medical examinations dated from 1966 through 1969 show normal psychiatric examinations and the Veteran specifically denied any psychiatric symptoms. In his March 2014 claim, the Veteran stated that he had "survivor's guilt" and that he was seeking treatment for PTSD. The Veteran submitted a statement asserting that in March 2014, he was at a Veteran's group and was struck with sudden grief and crying spells. He reported that similar issues would happen while watching movies. The record includes a letter dated April 2014 that indicates that this incident was witnessed by several people. This letter does not make clear whether the author served with the Veteran. The Veteran sought psychological treatment starting March 2014. He first met with "Dr. A." He reported to Dr. A that he has been experiencing his symptoms "for a while" and that he has been having tearful episodes "for years." The Veteran next attended an examination with "Dr. L." in April 2014. Upon examination, the Veteran endorsed similar symptoms. He denied a history of traumatic experiences. Upon comprehensive examination, Dr. L. opined that the Veteran did not meet the diagnostic criteria for PTSD. Further, Dr. L. assessed a provisional diagnosis for "adjustment disorder versus bereavement" and mild cognitive impairment. The Veteran attended a subsequent examination with "Dr. E. L." in May 2014. This examination is virtually identical to the first. The Veteran was assessed with "rule out adjustment disorder." After this examination, the Veteran was referred to therapy. VA service center therapy notes in May 2014 indicate the Veteran denied severe symptoms, his mood is manageable, and he was somewhat prompted to go to counseling because of a friend's recent receipt of high service connection benefits. Psychiatric assessements from the same center going forward continued to have only provisional diagnoses of psychiatric disorders. At the Veteran's last documented counseling session in June 2014, he reported that he hoped he might be eligible for service connection, possibly for PTSD. In response, the counselor opined that he did not meet PTSD criteria because he did not have trauma exposure in the military. With regard to the Veteran's claim of PTSD and other acquired psychiatric disorders, the Board finds that the Veteran has not had a diagnosis of PTSD or other mental disorder during the pendency of this claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As noted above, VA treatment records show no affirmative diagnosis of any mental disorder, let alone a diagnosis for PTSD. Specifically, two mental health professionals found that the Veteran did not meet the criteria for a diagnosis of PTSD nor any firm psychiatric diagnosis. The Board accords great probative weight to these conclusions that the Veteran does not have a diagnosis of PTSD or other psychiatric disorders. Specifically, the professionals based their conclusions on interviews with the Veteran and full psychiatric examinations. With regard to the Veteran's claim for other acquired psychiatric disorders, as noted above, the Veteran separated from active service in January 1968. The Board notes that psychiatric disorders are diseases; therefore, service connection can be granted only if the Veteran's psychiatric disorder was incurred when the Veteran was on active duty. See 38 U.S.C.A. §§ 101 (2), (24), 1110; 38 C.F.R. § 3.6. As the Veteran must have been on a period of active duty when his psychiatric disorder was incurred, the date of such incurrence is key to determining whether service connection is warranted. However, in this case, there is no evidence of an acquired psychiatric disability during the pendency of the appeal period. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, as explained above, the Veteran indicated that his psychiatric symptoms did not begin in close proximity to his service. For these reasons, sufficient symptomatology has not here been established, either through the medical evidence or through the Veteran's statements. The Veteran's claim for service connection includes his own assertion that his psychiatric disability is related to military service. As a lay person, the Veteran is competent to relate some symptoms that may be associated with psychiatric disorders, but he does not have the requisite medical knowledge, training, or experience to be able to diagnose the medically complex disorder of PTSD or other acquired psychiatric disorders nor opine on its etiology. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that requires a medical opinion to diagnose and to relate to service or differentiate from in-service symptoms and diagnosis). Psychiatric disabilities are medically complex disease processes because they require specialized testing to diagnose and manifest observable symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Thus, the Veteran is not competent to diagnose his claims of PTSD and other acquired psychiatric disorders. Finally, it should be noted that the Veteran was not afforded an opportunity to have an examination. 38 U.S.C.A.§ 5103A(d). An examination is required when the following is met: (1) Competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) Evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies; (3) An indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; (4) But there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no competent diagnosis, there is no evidence of an injury in-service, and there is sufficient competent medical evidence on-file to determine that the Veteran does not have PTSD or an acquired psychiatric disorder either currently or during active service. The preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include PTSD, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs