Citation Nr: 1729487 Decision Date: 07/26/17 Archive Date: 08/04/17 DOCKET NO. 11-14 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a mental illness or psychosis for the purpose of establishing eligibility for medical treatment only pursuant to the provisions of 38 U.S.C.A. § 1702 (West 2014). ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 to April 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board remanded this case in April 2014 and February 2016 for additional procedural and evidentiary development. FINDINGS OF FACT 1. The Veteran does not currently have PTSD and has not had any such disability at any point since filing his claim for service connection. 2. The Veteran did not incur an event, injury, or disease during active duty service related to his current provisional diagnoses of a panic disorder and an adjustment disorder with mixed anxiety and depressed mood. 3. The Veteran was first diagnosed with an acquired psychiatric disorder, to include a panic disorder and an adjustment disorder with mixed anxiety and depressed mood, approximately 11 years after his discharge from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125, 4.130 (2016). 2. The criteria for service connection for a mental illness or psychosis for the purpose of establishing eligibility for medical treatment only pursuant to the provisions of 38 U.S.C.A. § 1702 have not been met. 38 U.S.C.A. §§ 1702, 5107; 38 C.F.R. §§ 3.2, 3.12, 3.102, 3.159, 3.384 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims 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, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In February 2016, the Board remanded the case for the Agency of Original Jurisdiction (AOJ) to ascertain the Veteran's current address and establish contact with him, schedule the Veteran for a VA examination and inform him of the consequences of failing to report for a scheduled VA examination without good cause, and issue a supplemental statement of the case (SSOC) if any benefit was denied by the AOJ. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection for an Acquired Psychiatric Disorder The Veteran asserts that he has a current acquired psychiatric disorder that was caused by his active duty service. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-V). Id.; see 38 C.F.R. §§ 4.125(a), 4.130. However, the record reflects that the Veteran's psychiatric health has also been analyzed under the DSM-IV criteria because it was analyzed prior to the release of the DSM-V. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that VA may presume that a diagnosis made by a mental health care professional was made in accordance with the DSM-IV). Thus, the Board shall consider the Veteran's appeal in light of both the DSM-IV and DSM-V. In June 2010, the Veteran filed a service connection claim for a "mental condition" and he indicated that it began in 1997. He also described three in-service incidents or stressors, including seeing a dead body in 1995 and going through near-death experiences in 1997 and 1998, which he attributed to his current acquired psychiatric disorder symptoms. In November 2011, VA determined that there was insufficient information required to verify the Veteran's claimed stressors in connection with a claim for PTSD. A November 2010 VA psychology note showed that the Veteran complained of experiencing sharp chest pains when he was anxious. He indicated that he had experienced this chest pain for 10 to 15 years. Following a psychological evaluation, the Veteran was provisionally diagnosed with a panic disorder. In a December 2010 VA psychology note, the Veteran reported that he had less difficulty with depression. After a mental status evaluation, the doctor provisionally diagnosed him with an adjustment disorder with mixed anxiety and depressed mood. Following the Board's April 2014 and February 2016 remand directives, the AOJ attempted to schedule the Veteran for a VA examination on three occasions to ascertain the diagnosis of any current psychiatric symptoms and the etiology of any such symptoms. Most recently, the AOJ notified the Veteran in June 2016 and July 2016 at his current address located on "Cedar Circle" of an upcoming VA examination appointment and the Veteran verbally indicated in July 2016 that he would attend the scheduled examination. However, as with the previously-scheduled appointments, the Veteran did not report to the VA examination and he did not provide an explanation for his absence. VA regulations state that when a claimant, without good cause, fails to report for an examination in connection with an original claim, the claim shall be rated on the evidence of record or even denied. See 38 C.F.R. § 3.655 (2016). Furthermore, the law has long held that the duty to assist a claimant in the development of an application for benefits is not a two-way street. If the Veteran wishes help in developing this claim, he cannot passively wait in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). As the Veteran failed to report to the scheduled VA examinations on three occasions without providing good cause, the Board must adjudicate his claim based on the evidence of record. The evidence of record does not show that the Veteran currently has PTSD at any point since filing his claim for service connection. Where there is no disability, there can be no entitlement to compensation. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's June 2010 statements describing three, uncorroborated in-service stressors; however, the overall record, including the November 2010 and December 2010 VA psychology notes, does not support a diagnosis of PTSD during the appellate period. In fact, the claims file does not contain any competent evidence indicating a diagnosis of PTSD under the DSM-IV or DSM-V criteria. Nonetheless, the Veteran was provisionally diagnosed with a panic disorder and an adjustment disorder with mixed anxiety and depressed mood during the appellate period. Thus, the first element of service connection for an acquired psychiatric disorder is met. However, the second element of service connection is not met. Specifically, the Veteran's service treatment records do not show any complaints of or treatment for any acquired psychiatric disorder. Medical professionals determined that psychiatric evaluation was normal in August 1993 service entrance, July 1998 periodic, and March 1999 separation reports of medical examination. Additionally, the Veteran specifically denied ever having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, periods of unconsciousness, and nervous trouble of any sort in August 1993, July 1998, and March 1999 reports of medical history that he completed contemporaneously at those times, even though he endorsed abnormal symptoms for other bodily systems. Furthermore, he denied symptoms of nervousness in August 1994, January 1996, January 1997, March 1998, and March 1999 service dental health questionnaires. In fact, post-service evidence also indicates that there was no continuity of symptomatology for any acquired psychiatric disorder. The record does not contain any evidence of complaints of or treatment for any abnormal psychiatric symptoms until the Veteran filed a claim for service connection in June 2010. Additionally, apart from the November 2010 and December 2010 VA psychology notes, the record is devoid of any medical treatment for any psychiatric disorder symptoms. Given the above evidence, the Board finds that the Veteran did not incur an event, injury, or disease during active duty service related to his current provisional diagnoses of a panic disorder and an adjustment disorder with mixed anxiety and depressed mood. The record is silent for any treatment or complaints of abnormal psychiatric symptoms during service, and the Veteran has denied any such abnormal symptoms throughout service and during his service separation examination. While the Board recognizes that the Veteran's current acquired psychiatric disorder is not a chronic disease for VA purposes, the evidence does not demonstrate that the Veteran's symptoms have been continuous since separation from service in April 1999. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 3.384 (2016); see also Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). There were no complaints, diagnosis, or treatment for these disorders for over a decade following service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 11 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). As there is no in-service injury, event, or disease, there can be no existence of a causal relationship between the Veteran's current acquired psychiatric disorder and an in-service injury, event, or disease. Thus, a discussion of the lack of a nexus is not necessary. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Eligibility for Medical Treatment Only Pursuant to 38 U.S.C.A. § 1702 Notwithstanding the Board's decision above denying service connection for an acquired psychiatric disorder, VA laws and regulations allow for service connection solely for eligibility for medical treatment for psychosis or mental illness under certain conditions. Under 38 U.S.C.A. § 1702(a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. Under 38 U.S.C.A. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service or before the end of the two-year period beginning on the last day of the Persian Gulf War. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384, which includes: 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. However, 38 U.S.C.A. § 1702 does not define "mental illness." The Veteran's DD 214 shows that he had active duty service during the Persian Gulf War and that he served in the Southwest Asia Theater. See 38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i) (the wartime period for the Persian Gulf War is defined as beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law). As discussed above, the Veteran's service treatment records show that his psychiatric symptoms were normal and he denied ever having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, periods of unconsciousness, and nervousness during service. His first complaints of an acquired psychiatric disorder came in June 2010 in connection with a claim for VA monetary benefits. He was provisionally diagnosed with a panic disorder in November 2010 and an adjustment disorder with mixed anxiety and depressed mood in December 2010. This evidence does not show that the Veteran had a psychosis at any time during or after service. While he was provisionally diagnosed with a panic disorder and an adjustment disorder with mixed anxiety and depressed mood after service, these mental illnesses were diagnosed approximately 11 years after the Veteran's separation from active duty service. Accordingly, as a psychosis or mental illness was not shown in service or within the two-year period after the Veteran's discharge from active duty service, the preponderance of the evidence is against the claim for service connection for a mental illness or psychosis for the purposes of establishing eligibility for medical treatment only pursuant to the provisions of 38 U.S.C.A. § 1702. The benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. Service connection for a mental illness or psychosis for the purpose of establishing eligibility for medical treatment only pursuant to the provisions of 38 U.S.C.A. § 1702 is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs