Citation Nr: 18147148 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 12-30 518 DATE: November 5, 2018 ORDER Entitlement to service connection for a psychiatric disorder is denied. FINDING OF FACT The most probative evidence of record shows that the Veteran does not have an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and dysthymic disorder, which is etiologically related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Marine Corps from June 1963 to November 1967, including two tours in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which, inter alia, denied the claim currently on appeal. In his October 2012 VA Form 9, the Veteran requested a Travel Board hearing before a Veterans Law Judge. The hearing was scheduled to be held in May 2015. Prior to the hearing, however, the Veteran cancelled his hearing request. Having received no further hearing request from the Veteran or his representative, the Board will proceed with consideration of the appeal based on the evidence of record. This matter was most recently before the Board in October 2017 and was remanded for further development. There has been substantial compliance with the remand directives. Entitlement to service connection for a psychiatric disorder 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 disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In adjudicating a claim for VA benefits, 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 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). At the outset, the Board notes that in the October 2017 remand, the Board directed that the Veteran be scheduled for a VA examination. That examination was scheduled for November 2017, but the Veteran refused the examination. The cancellation note indicates the Veteran did not want the examination. To date, the Veteran has not requested rescheduling of the examination or provided any additional information concerning his reason for refusing the examination. If a Veteran, without good cause, fails to report for a VA medical examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38C.F.R. § 3.655(a). There is no evidence of such good caused in this case. Accordingly, the Board will proceed with adjudicating the Veteran’s claim based on the evidence currently of record. Turning to the evidence of record, the Board notes that a Springfield Vet Center intake form associated with the Veteran’s claims file in April 2009 includes an assessment of dysthymic disorder, as well as alcohol dependence and cocaine abuse “in full sustained remission.” There is no mention of PTSD, anxiety, or depressive disorder. The Veteran’s medical treatment records are otherwise silent for diagnoses of these conditions. Indeed, a March 2009 VA examination report notes substance abuse counseling but concludes the Veteran’s treatment records are otherwise not supportive of PTSD, anxiety, or depression symptoms, and the examiner declined to make such a diagnosis. While the Veteran was noted to be experiencing difficulty adjusting to mainstream society after release from prison, as well as stress from caring for his elderly diabetic brother, he was found to be handling his stress effectively and was “not troubled by specific symptoms of a psychiatric disorder.” Therefore, the evidence indicates the Veteran does not meet the first criteria of service connection, a current disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Even assuming the Veteran has a current disability, he still does not meet the criteria for the second and third requirements of service connection—an in-service incurrence or aggravation of a disease or injury and evidence of a nexus between the claimed in-service incurrence and the current disability. The Veteran’s service treatment records (STRs) are associated with the claims file and are silent for any reports of or treatment for a psychiatric disorder. Post-service VA treatment records include an August 2007 initial substance abuse assessment from the Springfield Outpatient Clinic of the Northampton VA Medical Center. The Veteran had recently been released from the Massachusetts Department of Corrections after 15 years of incarceration following a 1992 conviction for second degree murder. During the appointment, the Veteran described his mood as “anxious” due to his fear of reintegrating into mainstream society. A PTSD screen was positive. In a January 2009 written statement, the Veteran wrote that his unit in Vietnam was attacked by the Viet Cong on several occasions, and that he once had a road bomb blow up a truck near him. He reported that he had a lot of bad dreams: “just being there and going through two monsoon seasons is enough to give you bad dreams.” He reported that even though his motor pool was blown up, no one in his unit was killed. As previously mentioned, the Veteran was afforded a VA examination in March 2009. The examiner found that the Veteran’s VA treatment records were not supportive of PTSD, anxiety, or depression symptomatology. Nevertheless, the examiner noted that the Veteran was undergoing ongoing treatment for substance abuse disorder and supportive psychotherapy for stress associated with reintegration into society after prison and caring for his sick, elderly brother. During the examination, the Veteran reported three prior suicide attempts, the first of which reportedly occurred while he was stationed at Camp Lejeune on active duty. The Veteran reported drinking shoe dye because he hated being in the Marine Corps. He also referenced later motor vehicle accidents and suggested, “maybe they weren’t so accidental.” He also reported trying to electrocute himself when he was in his twenties, after he felt drunk and despondent following a divorce. The examiner noted that while on active duty, the Veteran’s military occupational specialty was artillery; but though his record indicated that he was involved in combat missions, he denied being traumatized by his experiences while in Vietnam. However, the Veteran did indicate feeling traumatized and guilt-ridden when thinking about the murder for which he was incarcerated. Overall, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD: “[a]lthough exposed to military trauma, he does not experience behavioral, cognitive, affective, or somatic symptoms consistent with the diagnosis, nor is there any impairment on his day-to-day functioning.” With respect to other mental disorders, the examiner wrote that he had assessed the Veteran for depressive and anxiety disorders and found that he did not meet the criteria for diagnosis in either spectrum. The examiner noted that he had spoken to the Veteran’s Vet Center therapist, who concurred that the Veteran did not have symptoms of PTSD, depression, or anxiety. The examiner again noted that the Veteran had some difficulty adjusting to mainstream society after serving time in prison but found him to be “fairly resilient in handling these challenges without notable mental health symptomatology.” In a July 2010 statement in support of his claim, the Veteran reported that he experienced nightmares, flashbacks, anxiety, panic attacks, insomnia, and depression as a result of his active duty combat experience. In an October 2013 VA treatment note, the Veteran underwent a PTSD screen, which was negative. Depression screens from 2013 and 2015 were also negative, and in a May 2015 VA treatment note, the Veteran denied depression, anxiety, and insomnia. Overall, the Board finds that the weight of the competent and credible medical evidence shows that the Veteran does not have a psychiatric disorder that is etiologically related to service. While the Veteran described some traumatic experiences from his time in Vietnam, he has never associated those experiences with any current psychiatric symptoms. Instead, the record shows that the Veteran has experienced some difficulties adjusting to life after prison, including stress from caring for his brother. Additionally, any feelings of trauma or guilt seem to be associated with the murder for which he was incarcerated. Indeed, during his March 2009 VA examination, the Veteran denied being traumatized by his experiences in Vietnam. Despite ample opportunity to do so, the Veteran has not described how any current psychiatric symptoms are related to any traumatic experiences in Vietnam. In reaching its decision, the Board acknowledges that the Veteran is competent to report symptoms and history of treatment. However, he is not, as a lay person, competent to make medical conclusions such a diagnose himself with a psychiatric disorder or determine the etiology of such disorder. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In contrast, the opinions of the March 2009 VA medical examiner, a psychologist, are competent. Moreover, the Board finds the opinions of the March 2009 VA medical examiner, who conducted an in-person interview and reached conclusions based on the Veteran’s entire medical history (including consultation with the Veteran’s treating therapist), to be the most probative evidence of record as to the nature and etiology of the Veteran’s claimed psychiatric disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the expert’s knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions and observations are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, service connection for a psychiatric disorder is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel