Citation Nr: 1752098 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-34 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety and depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was previously before the Board in October 2016, at which time the Veteran's claim was expanded to include not just PTSD, but also any other psychiatric conditions. At that time, the appeal was remanded for further development, to include providing the Veteran with a VA psychiatric examination. The Board finds that there has been substantial compliance with its October 2016 remand directives. Stegall v. West, 11 Vet. App 268 (1998). FINDING OF FACT The most probative evidence of record shows that the Veteran does not meet the applicable criteria for a current diagnosis of any acquired psychiatric disorder, including PTSD or adjustment disorder with anxiety and depression. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD or adjustment disorder with anxiety and depression, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks to establish service connection for PTSD as related to his service in the Vietnam War. 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection also may 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) (2017). Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board notes that establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2017); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. § 3.304 (f) (2017). Previously, 38 C.F.R. § 4.125 (a) provided that mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). The Board notes that the DSM-IV has been updated with the DSM-5. Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The provisions of the interim final rule, adopted without change in the final rule, only apply, however, to applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to claims that have been certified for appeal to the Board, even if those claims are subsequently remanded to the agency of original jurisdiction. 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the Veteran's appeal was certified to the Board in April 2016. Thus, as the appeal was pending at the RO after August 4, 2014, the diagnostic criteria of the DSM-5 are applicable in the present case. As concerns stressors, effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran'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 a veteran'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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3)(2017). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability, as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). 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 claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are negative for complaints, diagnoses, or treatment of any acquired psychiatric disorder or symptoms. In addition, other than a 1986 diagnosis of a personality disorder-for which any veteran is legally barred from receiving service connection-the Veteran's post-service treatment records are negative as to any finding of, or treatment for, a psychiatric disability until August 2016, at which time a VA psychiatrist diagnosed the Veteran with adjustment disorder, with anxiety and depression, ruling out PTSD. It was this diagnosis that prompted the Board to reopen the Veteran's previously-denied claim for service connection for a psychiatric disorder, in October 2016. A November 2016 VA treatment record further indicated a diagnosis of PTSD. The Veteran was subsequently seen for therapy by a VA social worker on a single occasion in 2016, at which time he declined to continue treatment. In contrast to these two isolated diagnoses, the Board notes that the Veteran was repeatedly seen at VA for routine medical issues throughout the appeal period. At 31 separate appointments from April 2009 to December 2016, the Veteran underwent screenings which resulted in a negative finding for depression. At appointments in April 2009, May 2010, August 2010, October 2010, April 2011, September 2011, March 2012, April 2012 and October 2012, the Veteran expressly denied experiencing any symptoms of depression or anxiety. In November 2011, the Veteran underwent a VA PTSD examination. At that time, following a thorough examination, the VA psychologist determined that, while the Veteran experienced a stressor that was adequate to support a diagnosis of PTSD, he did not actually meet the criteria for such a diagnosis, or a diagnosis of any other psychiatric disorder. In February 2017, subsequent to the Board's October 2016 remand, the Veteran underwent another VA PTSD examination. At that time, the VA psychologist reported that the Veteran first sought mental health treatment in 1971 related to cocaine addiction, and that he was currently prescribed sertraline and trazodone but did not engage in therapy. The Veteran's description of his stressor was vague. The psychologist concluded that the Vetera did not meet the DSM-IV or DSM-5 criterial for PTSD, based on objective test results and a diagnostic clinical interview. In addition, the psychologist found no additional symptoms or indication of any mental health disorder. The examiner determined that the Veteran did not have any mental health symptoms at that time which would readily fit a formal mental health diagnosis, and a review of his records showed no history of such in his 40 years of post-service treatment. The Board notes that the psychologist came to this conclusion after reviewing the entirety of the Veteran's treatment records, to include both of the 2016 notations concerning an adjustment disorder and PTSD. Based on the evidence of record, the Board must find that service connection for an acquired psychiatric disorder is not warranted. Both the November 2011 and February 2017 examiners, following review of the record and thorough testing, determined that the Veteran did not have a mental health diagnosis. Such conclusions are supported by the evidence of record, which shows overwhelmingly that the Veteran has not been diagnosed with, or sought treatment for, such disabilities. The November 2011 examiner concluded that the Veteran did not experience the social and occupational deficits necessary for a diagnosis of PTSD, nor was there evidence of any other mental health disability present. The February 2017 examiner noted the same, and explained that there clearly was no indication from testing that the Veteran had any mental health disability. Each examiner offered clear conclusions with supporting data and test results, as well as reasoned medical explanations; thus, the Board accords great probative weight to the opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, the two most complete examinations on record have both concluded that the Veteran does not have an acquired psychiatric disorder. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). The only evidence of record that the Veteran currently has a valid mental health diagnosis that could be linked to his military service consists of the August 2016 diagnosis of an adjustment disorder, with anxiety and depression, ruling out PTSD, and a single November 2016 note which indicates a diagnosis of PTSD. As for the diagnosis of adjustment disorder, with anxiety and depression, the Board finds that this single diagnosis is in contrast with the whole of the Veteran's medical record, to include the two thorough VA examinations which determined that there was no mental health disability present. Further, the Board finds that the November 2016 mention of a PTSD diagnosis was not a formal diagnosis. An important basis for weighing references to PTSD in treatment records is the purpose for which they are recorded. This can generally be surmised from the context of report. See Lee v. Brown, 10 Vet. App. 336 (1997) (a medical opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words). Simple references in the medical record that the Veteran is being followed for PTSD or noting a diagnostic history of PTSD are not presented as comprehensive diagnoses, but are presented typically in summary or list format to give treatment providers an overview of the Veteran's various disorders, and in some cases, the medications prescribed for each. Such non-diagnostic references may be based on a discussion with the Veteran or based on a review by the clinician of the Veteran's treatment records. In a voluminous record such as this one, the variances in diagnoses, preliminary diagnoses, and questioned diagnoses undoubtedly increases the likelihood of a disconnect between these informational references and the concurrent consensus of his psychiatric treatment providers as to his actual diagnosis. Indeed, in this case, it appears that the notation of treatment for PTSD symptoms was used as an informational description of some of the Veteran's symptoms rather than a formal diagnosis. Accordingly, the Board finds that the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of an acquired psychiatric disorder. The Board reiterates that in the absence of proof of a present disability there can be no valid claim. See Brammer, supra. As a result, the claim for service connection must be denied. In denying the Veteran's claim, the Board recognizes that the U.S. Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding does not apply. The Board has considered the Veteran's statements regarding his symptoms, and acknowledges that he is competent to give evidence about what he experienced; for example, he is competent to discuss his depression and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in the present case, although such symptoms are found to be capable of lay observation, determining whether there is the presence or absence of a diagnosis of PTSD, depression or anxiety is not within the province of a layperson, as such diagnoses require psychiatric testing and evaluation by a mental health professional. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Thus, the Veteran's statements to the effect that he has an acquired psychiatric disorder do not constitute competent evidence. Consequently, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a disability for which service connection is warranted. Therefore, the provisions regarding reasonable doubt are not applicable and service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety and depression, must be denied. See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); see also Gilbert, supra. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety and depression, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs