Citation Nr: 1804388 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-46 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include generalized anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1958 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah which, inter alia, denied service connection for PTSD. In July 2017, the Board recharacterized the issue on appeal consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1, 4-6, 8 (2009), and remanded this matter for further development. The Board has bifurcated the claim to consider the claims for service connection for PTSD and for an acquired psychiatric disorder other than PTSD separately. See Tyrues v. Shinseki, 23 Vet. App. 166, 186 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011); rev'd on other grounds, 132 S.Ct. 75 (2011). Further, the Board notes that "[b]ifurcation of a claim generally is within the Secretary's discretion." Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The probative evidence of record indicates that the Veteran does not meet the diagnostic criteria for a diagnosis of PTSD. 2. The evidence is at least evenly balanced as to whether unspecified neurocognitive disorder with behavioral disturbance and generalized anxiety disorder are related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for unspecified neurocognitive disorder with behavioral disturbance and generalized anxiety disorder have been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with regard to the duty to notify or duty to assist. 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 a duty to assist argument). In any event, the Board notes that substantial compliance with the July 2017 remand directives has been achieved, with respect to the claims decided herein. Pertinent here, the Board remanded these matters to obtain updated VA treatment records and obtain an opinion as to the etiology of any diagnosed psychiatric disorder. Updated VA treatment records were obtained and an opinion discussing why the Veteran does not meet the applicable criteria for a diagnosis of PTSD was rendered in September 2017, as will be discussed in greater detail below. As such, substantial compliance with the February 2016 remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Merits A. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between 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). A necessary element for establishing any service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran asserts that he has PTSD related to his service at the front line in the Berlin Crisis. See December 2012 Statement of Veteran. He reported nightmares about seeing the enemy behind and on the side of him. See id. Medical treatment records from the Salt Lake City VA Medical Center (VAMC) note that the Veteran reported that he was told he had PTSD. The Veteran further reported that he had nightmares two times a night and could wake up with night sweats. Additionally, medical reports note that the Veteran has a history of depression/anxiety and PTSD. The Veteran underwent a neuropsychiatric assessment in April 2015 where it was noted that the Veteran had a diagnosis of generalized anxiety disorder by Dr. B. At the time of the examination, the Veteran, under Beck Depression Inventory-II (BDI-II) self-reported depressive symptoms and received a score of 32, which was indicative of severe depression. On a self-report measure of anxiety, the Beck Anxiety Inventory (BAI), he obtained a score of 23, which was indicative of moderate anxiety. On the PTSD Checklist (PCL-5), a self-report measure of PTSD symptoms, he obtained a score of 61, which is indicative of severe PTSD. He reported experiencing avoidance, negative alterations in mood and cognition, and hyperarousal symptoms over the past month. In a January 2016 mental health diagnostic interview report, the examiner noted that the Veteran did not report depressed mood, difficulty in falling asleep, difficulty in staying asleep, diminished ability to concentrate, low self-esteem, irritability, and isolation and social withdrawal. The Veteran did not report manic symptoms to include elevated mood, racing thoughts, active suicidal ideations, decreased need for sleep, and increased energy. The Veteran also did not report anxiety, difficulty controlling worries, restlessness, difficulty concentrating, irritability, and sleep disturbance. The Veteran reported nightmares and night sweats, but no other PTSD symptoms such as anxiety, isolation, avoidance behavior and irritability, difficulty falling or staying asleep, difficulty concentrating, hypervigilance, and exaggerated startle response. He did not report fear or intrusive distressing recollection of events. He did not have any thoughts, images, insomnia, flashbacks, avoidance of stimuli associated with the trauma, efforts to avoid thoughts, and feelings or conversations associated with trauma. The Veteran did not exhibit any effort to avoid activities; places or people that arouse recollections of trauma; an inability to recall an important aspect of the trauma. There were no feelings of detachment and no restricted range of affect. The Veteran did not report any psychotic symptoms including hallucinations, delusions, or disorganized thought processes. He did not exhibit disorganized and unpredictable behavior. He did not report panic attack symptoms such as anxiety, shortness of breath, palpitation, and flushing. The examiner assessed that the Veteran had a well-documented history of PTSD symptoms, but not enough for a diagnosis at that time. The diagnosis indicated, "R/o PTSD." The phrase "rule out" is "typically used to identify an alternative diagnosis that is being actively considered, but for which sufficient data has not yet been obtained." Alvin E. House, DSM-IV Diagnosis in the Schools 33 (2002). "Rule out" is "a reminder or instruction to continue seeking the information which would allow a diagnosis to be conclusively identified or eliminated from consideration (for the present)." Id. cited in Ausler v. Shinseki, No. 12-3276, 2013 WL 5614245 (Oct. 15, 2013) (mem dec). Pursuant to the Board's remand, a VA medical opinion was rendered in September 2017. The authoring psychologist reviewed the Veteran's claims file and noted that the Veteran's described symptomatology is not supportive of a diagnosis of PTSD. The psychologist further explained that there is no evidence to suggest that the Veteran has ever met the criteria for an accurate diagnosis of PTSD. There was also no delineation of symptoms to support any PTSD diagnosis purportedly made. The psychologist noted that while the Veteran endorsed PTSD symptoms on the PCL during his neuropsychological examination, the PCL is merely a screener for symptoms and not a diagnostic tool. Initially, the Board notes that the Veteran is competent to assert that he was told he has PTSD. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). However, despite being competent, it is not apparent who told the Veteran that he had PTSD and whether the DSM-IV was used to support such a diagnosis, as required by 38 C.F.R. § 4.125(a). Moreover, it is not even apparent that it was a medical professional who told the Veteran that he has PTSD, as is required under 38 C.F.R. § 3.304(f). Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals "are presumed to know the DSM-IV requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis"). 38 C.F.R. §§ 3.304(f), 4.125(a) (requiring medical evidence diagnosing PTSD based on examination findings and in accordance with the DSM-IV (where certification was on or before August 4, 2014; otherwise DSM 5). Given those insufficiencies with the Veteran's report that he was told that he has PTSD, the Board finds the most probative evidence is September 2017 VA medical opinion, along with the other medical evidence of record. Indeed, the authoring psychologist explained precisely why the Veteran did not meet the diagnostic criteria for PTSD at any point. Further, the psychologist explained that while the Veteran's reported symptoms indicated that the Veteran possibly indicated that the Veteran may have PTSD, the PCL is merely a screener for symptoms and not a diagnostic tool. Further, the Board noted that despite several mental health treatment records, none of those records reflects a diagnosis of PTSD. Indeed, several records indicate to "rule out" a diagnosis of PTSD, as discussed above. All of this evidence, considered together, is probative as to whether the Veteran has been diagnosed with PTSD. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (Board charged with assessing the probative value of all evidence of record); See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). For the foregoing reasons, the evidence indicating that the Veteran does not have PTSD is more probative than the statement of the Veteran that he was told that he has PTSD. Accordingly, where, as here, there is competent and persuasive medical evidence establishing that the Veteran does not have PTSD, there can be no valid claim for service connection for this disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the first essential criterion for a grant of service connection, evidence of a current PTSD diagnosis, has not been met. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Psychiatric Disorder other than PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The evidence reveals that the Veteran has been diagnosed with both unspecified neurocognitive disorder with behavioral disturbance and generalized anxiety disorder. See September 2017 VA Medical Opinion (diagnosing the former); January 2017 VA Treatment Record (diagnosing the latter). Regarding an in-service incident, as discussed above, the Veteran had service at the front line in the Berlin Crisis. See December 2012 Statement of Veteran. He currently reports nightmares about seeing the enemy behind and on the side of him. See id. The Veteran also reported hitting his head multiple times on a tank during service. See August 2016 VA Treatment Record. He also stated that he believes he lost consciousness during those incidents. See id. The Veteran is competent to report such and the Board finds no reason to doubt the credibility of those statements. Regarding generalized anxiety disorder, in the context of discussing the relevant symptomatology, the treating VA clinician noted the Veteran's reports of serving on the front line in East Berlin. See January 2017 VA Treatment Record. Further, the clinician noted that the Veteran was having frequent nightmares with sweating related to his recollection of those in-service events. While there is no explicit nexus opinion, it is apparent that the clinician rendered a diagnosis of generalized anxiety disorder based upon the Veteran's competent and credible reports of in-service events and associated symptomatology. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no etiological opinion counter to the records linking generalized anxiety disorder to the credibly reported in-service incidents. Regarding unspecified neurocognitive disorder with behavioral disturbance, the psychologist who authored the September 2017 VA medical opinion found that it was less likely than not that the disability began in or was otherwise related to service. While the psychologist made in-depth findings as to symptoms and why the diagnosis of unspecified neurocognitive disorder with behavioral disturbance was appropriate, the sole rationale for the opinion rendered was that the Veteran's cognitive decline had a recent onset. On the other hand, the Veteran underwent a VA neurology visit in August 2016. There, he reported that he hit his head multiple times in service and believes he may have lost consciousness as a result of such traumas. The clinician, a medical doctor, concluded that the Veteran sustained a traumatic brain injury (TBI) during service. There were no other reports of any head trauma following service. The clinician noted that a magnetic resonance imaging (MRI) of the brain showed the possible TBI. The clinician noted that the Veteran's neurocognitive decline was secondary to TBIs and hypoxia from chronic smoking. The clinician related the Veteran's neurocognitive decline, in part, to in-service TBIs and a review of the treatment record reveals his thought process for determining such. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. The Board finds the opinion probative as it is based on an accurate reading of the record and is not contradicted by any other evidence of record. See Caluza, 7 Vet. App. at 506. Notably, the author of the September 2017 VA opinion did not consider the possibility that the Veteran's unspecified neurocognitive disorder with behavioral disturbance may be related to in-service head trauma. Thus, as there was no opinion provided that counters the opinion contained in the August 2016 treatment record-which relates the unspecified neurocognitive disorder with behavioral disturbance to the Veteran's military service. The evidence is thus at least evenly balanced as to whether the Veteran's unspecified neurocognitive disorder with behavioral disturbance and generalized anxiety disorder are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for unspecified neurocognitive disorder with behavioral disturbance and anxiety is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is denied. Service connection for unspecified neurocognitive disorder with behavioral disturbance and generalized anxiety disorder is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs