Citation Nr: 18142327 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-23 787 DATE: October 15, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an effective date earlier than May 15, 2013 for assignment of a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT A preponderance of the evidence shows the Veteran’s PTSD is etiologically unrelated to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2000 to August 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The matter was previously before the Board in September 2017, at which time it was remanded for additional development. It has been returned to the Board for appellate review. When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA has obtained all identified and available treatment records for the Veteran. In its September 2017 remand, the Board directed the RO to schedule a VA examination to explore the etiology of the Veteran’s claimed PTSD, which examination the Board deemed necessary to determine whether PTSD is service-related in the Veteran’s case. The record shows that despite receiving adequate notice as to the time and place of the scheduled examination, the Veteran did not present for the examination, and did not show good cause for failing to do so. The duty to assist is not a one-way street; a claimant cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Woods v. Gober, 14 Vet. App. 214, 224 (2000). In light of the facts of this case, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion regarding the Veteran’s service connection claim has been met. 38 C.F.R. § 3.159(c)(4). Finally, the Veteran has not identified any outstanding evidence that needs to be obtained. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for PTSD Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). 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 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. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As noted above, the Veteran failed to present for her scheduled VA psychiatric examination, and did not provide any explanation for failing to do so. When a claimant fails to present for a VA examination pursuant to a claim for service connection without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. It is crucial to note that the VA examination ordered by the Board in its September 2017 remand was, at the time the remand was issued, determined to be necessary to develop the information required to meet the “at least as likely as not” standard set forth for a grant of service connection. As that examination has not taken place, the record, as it stands, remains wanting of the necessary evidence to permit a grant of service connection in this case. In other words, had the record contained sufficient evidence to permit the Board to grant service connection in September 2017, it would have done so at that time. The VA examination not having been completed, the medical picture facing the Board has not changed. The Veteran did receive a VA examination to explore the etiology of her claimed PTSD in December 2011. That examiner indicated that, based on his review of the record, he was “unable to relate any traumatic [in-service] event that would qualify for [a PTSD] diagnosis.” Moreover, the Veteran’s statements throughout the appeal period have varied with respect to her claimed stressor or stressors. For instance, a November 2009 statement in support of her service connection claim attributed her PTSD symptoms to fear for “our safety as a nation,” while serving in the Korean de-militarized zone. More recent statements indicate she suffered sexual harassment in service, both in South Korea and during basic training. The Board sought in its remand to develop evidence of military sexual trauma as claimed by the Veteran, but again, her failure to present for a scheduled VA examination leaves only the record as it stands, which does not contain significant evidence of such trauma. Rather, a records review performed by a VA examiner in July 2018 revealed the provenance of the Veteran’s PTSD to be childhood trauma. To be clear, the record does not reflect that a firm diagnosis of PTSD has actually been furnished in contemplation of military-related trauma in the Veteran’s case. While the Board has considered with sympathy the Veteran’s lay statements, it cannot afford probative weight to her assertions with respect to the etiology of PTSD in this case. Whiles she is competent to report her experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of PTSD. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran’s reports of her symptoms are relevant, competent, and credible; however, the question of the etiology of a psychiatric disorder is limited to the purview of someone with medical knowledge and training. In sum, the evidence does not show that it is at least as likely as not that PTSD is related to active service. As the preponderance of the evidence is against the claim, service connection for PTSD must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an effective date earlier than May 15, 2013 for assignment of a total disability rating due to individual unemployability (TDIU) is remanded. In its September 2017 remand, the Board sought an opinion from a VA medical examiner as to whether the Veteran became unable to secure or maintain gainful employment due to her service-connected disabilities at any time between November 10, 2009 and May 15, 2013. The Veteran was not service-connected for PTSD at that time, nor is she now, as explained in the previous section of this decision. However, the July 2018 opinion furnished pursuant to the Board remand fails to excise consideration of PTSD symptoms from the analysis of the Veteran’s capacity for work during the relevant period, and, as such, is unhelpful in determining diminution in ability to work due to service-connected disabilities. Accordingly, on remand, a new opinion must be obtained that explicitly limits its analysis to those symptoms attributable to service-connected disability. To the extent that the Veteran’s work-related limitations cannot be parsed out among her service-connected and non-service-connected disabilities, the examiner must explain why that is the case. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain updated VA and private treatment records regarding the Veteran’s service-connected disabilities. Any negative response should be indicated in the claims file. (Continued on the next page)   2. Then, submit the claims file to a VA examiner to address whether the evidence of record indicates the Veteran was at least as likely as not (50 percent or greater probability) unable to secure or maintain gainful employment due to her service-connected disabilities alone at any time between November 10, 2009 and May 15, 2013, and if so, on which date she became at least as likely as not unable to do so. A complete rationale must be provided. 3. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel