Citation Nr: 1752313 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-31 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression and anxiety. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs Regional Office (RO) in Houston, Texas issued in November 2012. In March 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In May 2016, the Board remanded the PTSD claim to develop it further according to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), by recharaterizing it as filed in September 2011 as a (1) PTSD claim and (2) claim for acquired psychiatric disorder other than PTSD, to include depression and anxiety. In June 2016, a VA examiner provided an adequate addendum examination as the remand directed. Also in June 2016 , the RO issued its Supplemental Statement of the Case (SSOC) to continue to deny both claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The evidence of record does not establish a current diagnoses of PTSD during the period on appeal. 2. The evidence of record does not establish that a psychiatric disorder other than PTSD is causally related to the Veteran's active service. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a psychiatric disability other than PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations obligate VA to provide claimants notice and assistance in substantiating their claims. 38 U.S.C.A. §§5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Service Connection Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA may also grant service connection for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the Veteran incurred the disease or injury in service. 38 C.F.R. §3.303(d). There can be no valid claim absent proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for PTSD specifically requires medical evidence establishing a present or current diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. §3.304(f) (2017). A diagnosis of PTSD must be established in accordance with 38 C.F.R. 4.125 (a), which provides that, for VA purposes, all mental disorder diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). See 38 C.F.R. §3.304 (f). The Board acknowledges that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran's claim was certified to the Board in May 2015 (after August 4, 2014), the diagnosis of his PTSD should conform to DSM-5. See 38 C.F.R. § 4.125 (a) (2014). VA must consider all pertinent medical and lay evidence to evaluate a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to diagnose 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 medical professional's diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA may not find lay evidence incredible merely because contemporaneous medical evidence does not accompany it. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board may consider and weigh lack of contemporaneous medical evidence against a Veteran's lay statements. Id. Further, the Board may draw a negative inference from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A. Entitlement to service connection for post traumatic stress disorder (PTSD) The Veteran contends that his has a current psychiatric disorder, to include PTSD, attributable to service. The Veteran averred that "I am diagnosed with PTSD attributed to...my experiences" on VA Form 9 which he filed in October 2013 to appeal to the Board. The Board finds that the weight of the competent and probative evidence does not demonstrate a diagnosis of PTSD, presently or any time during the appeal period. See Brammer, supra; 38 C.F.R. §§ 3.304(f), 4.125(a). The Board observes that the June 2016 VA examiner concluded the Veteran's "report of symptoms would not meet DSM-IV or DSM-5 criteria for a diagnosis of PTSD or a Trauma Related Disorder...It is less likely than not that the Veteran has a diagnosis of PTSD in accordance with the DSM-5 diagnostic criteria that is related to events in service as described by the Veteran." The examiner reviewed the Veteran's claims file and continued to state "(h)e also screened negative for PTSD again on 12/24/15. The Veteran has never been formally diagnosed with PTSD or a Trauma Related Disorder." The examiner reviewed and discussed the Veteran's treatment records, including November 2011 records and noted those records include diagnosis/treatment of Major Depressive Disorder (assigned 11/22/11), Anxiety (assigned 11/22/11), and Insomnia (assigned 10/6/11). The examiner noted that the Veteran was not currently prescribed a psychiatric medication. The examiner also indicated that the Veteran initially screened negative for PTSD and depression in October 2011. It was noted that he was evaluated for a mental health intake on 11/22/11 and received diagnoses of Major Depressive Disorder and Anxiety. The examiner noted that the Veteran attended several mental health individual/group sessions in 2012 but hasn't returned for mental health care/treatment since then. It was noted that no mental health complaints were made, suspected, or observed throughout his medical appointment visits both inpatient and outpatient from 2012 to current. The examiner also noted that the Veteran screened negative for depression on 10/12/13 and 7/23/15 and also screened negative for PTSD again on 12/24/15. The Board finds the VA examiners are competent to assess mental disorders, including PTSD, given their education, experience and expertise; and thus lends their findings great weight in the findings of no diagnosis of PTSD. The Veteran is not competent to diagnose PTSD. Consequently, the PTSD claim is deny on the basis of no current diagnosis. B. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression and anxiety. The Board finds that the weight of the competent and probative evidence does not demonstrate that the Veteran has an acquired psychiatric disorder other than PTSD that is related to service. With regard to whether there is a current diagnosis, the March 2012 VA examiner observed an intake note from October 2011 where the Veteran presented himself with "problems related to depression...Diagnoses were listed as depression, NOS, anxiety and no GAF score was noted." But the October 2011 VA examiner also administered a depression screening test to the Veteran of two questions, both of which he answered in the negative. Thus, thus there is a notation of depression in 2011 to meet the first element of service connection. Second, the Veteran has described several in-service, but uncorroborated experiences to his VA examiners, and at his hearing, to argue that they caused a current psychiatric disorder. Here, the Board notes the Veteran is competent to report what he experienced. Additionally, the January 2013 VA examiner noted the Veteran described the same incidents, to include a failed airplane launch by which it plunged into the sea forward of the ship's bow; a sailor whose head was shaved and made to stand hours on deck, who then jumped overboard; and crew catch a damaged plane by nets on landing that disintegrated. Finally, the February 2012 VA examiner recorded the same alleged experiences, to whom the Veteran stated he "saw 5 different people die in different accidents." The Veteran is competent to report what he remembers, though there are no objective records that any of these events happened, as his STRs note none, nor do the ship's logs. Third, although the Veteran attributed his claimed acquired psychiatric disorder to his in-service experiences as he described them, he is not competent to opine a causal relationship between them and any acquired psychiatric disorder; because determining that requires medical expertise. Jandreau, 492 F.3d at 1377. Thus, his statements concerning a medical nexus are neither competent nor entitled to weight. Here, the Board observes that a February 2012 follow-up VA examiner wrote that the Veteran "reported other contributing factors to his depression including applying for Medicare as well as dealing with opening a new business," among other non-service stressors, including relations with his ex-wife. Thus, the only VA examiner to note the Veteran suffering a depressive disorder at the same time attributed it to non-service experiences. The June 2016 VA examiner concluded it is less likely than not that the Veteran has an acquired psychiatric disorder other than PTSD current depressive disorder other than PTSD in accordance with the DSM-5 diagnostic criteria that is related to events in service as described by the Veteran. As noted above, the examiner reviewed and discussed the Veteran's treatment records, including November 2011 records, and noted those records include diagnosis/treatment of Major Depressive Disorder (assigned 11/22/11), Anxiety (assigned 11/22/11), and Insomnia (assigned 10/6/11). She noted that that "(n)o mental health complaints were made, suspected, or observed throughout his medical appointment visits both inpatient and outpatient (from 2012-current). He screened negative for depression on 10/12/13 and 7/23/15." The examiner also noted that Veteran's denial and/or lack of reporting of chronic psychiatric symptoms experienced from his military discharge until he was examined. It was noted that he did not report psychiatric symptoms during the military. The Board finds the VA examiners are competent to assess mental disorders, including acquired psychiatric disorders other than PTSD, given their education, experience and expertise; and thus lends their findings great weight. As the preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claims of service connection for PTSD and for an acquired psychiatric disorder other than PTSD, to include depression and anxiety, must be denied. 38 U.S.C.A. §5107 (b); 38 C.F.R. §3.102 . (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression and an anxiety disorder, is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs