Citation Nr: 18143423 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 10-21 854 DATE: October 19, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder not otherwise specified (NOS), depressive disorder NOS, generalized anxiety disorder (GAD), and post-traumatic stress disorder (PTSD), is denied. REMANDED The issue of entitlement to service connection for a neck disability, diagnosed as spondylosis, herniated nucleus pulposus, and degenerative disc disease of the cervical spine, is remanded. FINDINGS OF FACT 1. A probative diagnosis of PTSD is not demonstrated by the evidence of record. 2. A current acquired psychiatric disorder, including anxiety and depression, was not caused or aggravated by a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1963 to June 1968. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2014, the Veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file In August 2014, the Board reopened the claim for service connection for a neck disability and remanded the appeal for further development. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has alleged additional psychiatric symptoms to those of his originally claimed PTSD, and has been diagnosed with anxiety and depression. Accordingly, the issue on the title page reflects the expanded issue. The Board notes that the issue of entitlement to service connection for obstructive sleep apnea (OSA) was previously remanded. A September 2018 rating decision granted service connection for OSA and awarded a 50 percent disability rating effective December 19, 2006. As this represents a full grant of the benefits sought, the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder NOS, depressive disorder NOS, GAD, and PTSD, is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also 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). Direct service connection may not be granted without evidence of (1) a current disability; (2) 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 disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Thus, the issues of entitlement to service connection for a psychiatric disorder other than PTSD and entitlement to service connection for PTSD are addressed separately in this decision. Establishment of service connection for PTSD 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). Some chronic diseases, including psychosis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Here, there is no showing or allegation that a psychosis manifested to a degree of ten percent or more within one year of service. A Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). For purposes of this paragraph, “fear 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. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Turning first to establishing service connection for PTSD, the Board finds that the preponderance of the evidence is against a finding that the Veteran currently meets the criteria for a diagnosis of PTSD. The Board notes that post-service VA treatment records are inconsistent in determining whether the Veteran has a diagnosis of PTSD. Although some records noted a history of PTSD, others indicated that PTSD had been ruled out as a potential diagnosis. See January 4, 2008 and February 21, 2012 VA Treatment Records. The Board further acknowledges the July 2010 Vet Center letter, which indicated that the Veteran had a diagnosis of PTSD. However, it is unclear whether this diagnosis was made pursuant to DSM-IV or DSM-V criteria. Furthermore, to the extent that any PTSD diagnosis has been rendered in a VA treatment record, such determinations have not been shown to have been based on a review of the Veteran’s claims file or any other detailed and reliable medical history. Additionally, these treatment records warrant less probative weight than the other medical evidence of record (which indicates that the Veteran does not have PTSD) as they do not contain an analysis or discussion as to whether or not all of the criteria for PTSD were met. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). Simply stated, a great deal of medical evidence has been associated with the claims file that renders the diagnosis provided in certain VA treatment records less probative. The Veteran was afforded a VA contract examination in March 2011, as well as VA psychological examinations in November 2011 and December 2017. He was not found to have a diagnosis of PTSD on any occasion. The Board finds the opinions of the VA examiners that the Veteran does not meet the criteria for a diagnosis of PTSD to be highly probative. These opinions were based on a thorough review of the claims file and provided a detailed report to support the conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The December 2017 examiner also conducted a complete interview of the Veteran and thoroughly reviewed his psychological medical history and the reported in-service stressors. For these reasons, the March 2011, November 2011, and December 2017 opinions are afforded greater probative value than the inconsistent diagnosis of PTSD found in the post-service VA treatment records. In addition, the available service treatment records contain no complaints, symptoms, or diagnoses of PTSD. The Board notes that the Veteran has credibly reported that he was exposed to mortar attacks while stationed in Vietnam. See December 2017 VA Examination Report. In any event, service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the greater weight of the evidence is against the conclusion the Veteran has PTSD. Accordingly, the claim for service connection for PTSD must be denied. In making this decision, the Board has also considered the lay evidence indicating that the Veteran has PTSD. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007. In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, unlike disorders that may be observable as to both their incurrence and their cause, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons, supra (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). Moreover, even if credible and competent, the general lay assertions are outweighed by the specific and reasoned conclusion of the health care professional who diagnosed a psychiatric disability other than PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. As explained above, the most persuasive and probative evidence of record does not reflect that the Veteran has a diagnosis of PTSD. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The lay statements of the Veteran, as well as the post-service VA treatment records were considered, but are found to be less probative than the VA examination reports. The Board finds it significant that the examination reports contain no diagnosis of PTSD, which further supports the finding that this disorder does not presently exist in this case. Thus, given the lack of probative and persuasive value of evidence demonstrating a current disability of PTSD, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and regulation. See Gilbert, supra; 38 C.F.R. § 3.102. Accordingly, for the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against finding there is a PTSD diagnosis in this case. See, e.g., Cohen v. Brown, 10 Vet. App. 128, 153 (1997) (Chief Judge Nebeker, concurring) (VA adjudicators may reject the claim upon a finding that the preponderance of the evidence is against a PTSD diagnosis). Therefore, service connection for PTSD is denied. Regarding the claimed acquired psychiatric disorder, there is no dispute that the Veteran has a current diagnosis of anxiety disorder NOS, GAD, and depressive disorder NOS. See March 2011 VA Contract Examination; December 2017 VA Examination Report; and VA Treatment Record dated June 1, 2015. However, there is no in-service findings of a diagnosis or symptoms related to a psychiatric disability and there are no probative medical opinions in favor of the claim. The Board appreciates that the Veteran believes that his current disability is related to service, and that he is competent to report his personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords the lay opinion no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, determining whether an anxiety or depressive disorder is due to military service falls outside the realm of common knowledge of a lay person. See Jandreau, supra. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Because the Veteran’s lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran’s assertion that his anxiety and depression were caused by his military service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder must be denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for a neck disability is remanded. The Veteran seeks service connection for a neck disability, and is service-connected for a traumatic brain injury (TBI). Regarding the neck disability claim, an October 2010 VA examiner opined that the neck disability was at least as likely as not secondary to the service-connected TBI. However, no rationale was provided in support of this opinion, nor did the examiner indicate whether the TBI caused or aggravated the neck injury. Clarification should be sought. The matter is REMANDED for the following action: 1. Associate any of the Veteran’s outstanding VA medical records related to his neck disability with the claims file. 2. Forward the Veteran’s claims file to an appropriate examiner to provide a supplemental opinion regarding the October 2010 VA examination to address the issue of service connection for a neck disability, to include as secondary to a service-connected disability. The record should be made available to and be reviewed by the examiner. It is left to the examiner’s discretion whether to reexamine the Veteran. The examiner should provide the following opinions: a) Whether it is at least as likely as not that the Veteran’s neck disability had its onset in service or is otherwise related to an in-service disease or injury. b) Whether it is at least as likely as not that the neck disability is either due to OR aggravated by the service-connected TBI. If the examiner finds that the Veteran’s neck disability has been aggravated by the TBI, the examiner should state the baseline level of severity of the neck disability, established by the earliest available medical evidence, and describe the extent to which the condition was permanently worsened by the Veteran’s diagnosed TBI. The examiner should specifically indicate the reasons and bases for the conclusions expressed. If the examiner is unable to offer the requested opinion, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel