Citation Nr: 18149190 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 13-21 705A DATE: November 8, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service connected lumbar strain, is denied. FINDINGS OF FACT 1. The Veteran’s current acquired psychiatric disability, to include schizophrenia and depression, is not etiologically related to his active service and was not caused or aggravated by his service-connected lumbar strain. 2. The Veteran does not have a current disability of posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in October 2016. A transcript of the hearing is associated with the claims file. This case was previously before the Board in July 2017. The Board denied service connection for an acquired psychiatric disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claim (Court). In May 2018, the Court granted a Joint Motion for Remand (JMR) on the grounds that the Board failed to support its decision with an adequate statement of reasons and bases. The JMR states that the Board erred because it did not address PTSD. The Parties agree this was prejudicial because the record contains two positive PTSD screenings. The Parties also noted that the record contained three negative PTSD screenings. As such, the Parties agreed that the Board should address PTSD and duly explain whether a PTSD VA examination or opinion is required to evaluate the Veteran’s claim. 1. Service connection for an acquired psychiatric disorder, to include schizophrenia and depression Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2017). “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). When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. 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”). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that competency has to do with whether the evidence may be considered by the trier of fact); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). As to some of the factors that go into making credibility determinations, both the Court of Appeals for Veterans Claims (Veterans Court) and the Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (stating that “the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that “[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character”). As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service (“nexus”), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the Federal Circuit drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit addressed the competency of lay diagnoses, stating as follows: “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Certain chronic diseases, including psychosis such as schizophrenia, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). A compensable degree of psychosis requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. See 38 C.F.R. § 4.130. In this case the record does not include evidence of a psychiatric condition from within one year of the Veteran’s separation from service. No psychiatric complaints or symptoms were noted at the time of his October 1971 examination. Instead, the first medical evidence of record is VA treatment records from nearly 30 years later. Thus, presumptive service connection is not warranted. Turning to the question of direct service connection, the Board notes that the Veteran has a current diagnosis of schizophrenia. Although the Veteran originally claimed depression secondary to his back injury, the March 2011 VA examiner found that it was less likely than not that the Veteran’s symptoms were depression secondary to his back injury, finding instead that his symptoms were better accounted for by a diagnosis of schizophrenia, undifferentiated and that his depressive symptoms were better described as the negative symptoms associated with schizophrenia. This examiner reviewed the objective evidence of record, documented the Veteran’s current complaints, and performed a thorough clinical evaluation. Therefore, it was adequate for VA purposes. The Veteran’s service treatment records are silent as to any complaints or treatment for a psychiatric condition. At the time of his separation examination in August 1971, the Veteran denied frequent or terrifying nightmares and depression or excessive worry. Although he did respond positively to the question of whether he ever had or had now frequent trouble sleeping, this was attributed to a head injury from an automobile accident prior to service and was consistent with his July 1968 Report of Medical History provided at the time of his entrance examination, which noted frequent trouble sleeping, frequent or terrifying nightmares, and loss of memory or amnesia. No corresponding psychiatric condition was identified at either his entrance or separation examination. At his October 2016 hearing, the Veteran reported seeing a psychiatrist at Fort Lewis in 1971 after the motor vehicle accident that led to his service connected back disability. His service treatment records show the May 1971 accident and ongoing treatment in 1971 for pseudofolliculitis, obesity, back problems, and tonsillitis. Due to the breadth of records from this period, his service treatment records appear to be complete. No psychiatric treatment or symptoms was noted. The Veteran further testified that his psychiatric symptoms began in 1990. At his October 2016 hearing, the Veteran stated that he thought that “Dr. Maya” might have related his psychiatric symptoms to his in-service back injury. The Veteran was urged to submit these records. While the record shows medical treatment at an office with a physician’s assistant with that first name, these records do not include any indication, by her or any other healthcare provider at that facility, that the Veteran’s psychiatric symptoms are causally linked to his back disability. No opinion was provided on the issue of direct service connection. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the Board finds that there is no indication from the record of an in-service an event, injury, or disease to which the Veteran’s current schizophrenia can be linked as required for direct service connection. Although the Veteran has pointed to his in-service back injury as the cause of his current psychiatric symptoms, there is no indication that his current psychiatric condition is linked to this in-service back injury as there was no psychiatric treatment or symptoms for several years after the accident and the Veteran’s separation from service. As such, an opinion on the question of direct service connection is not necessary. The Veteran himself has argued that his current psychiatric condition is related to his military service, particularly his in-service back injury, noting that he continues to have nightmares of falling. See October 2016 hearing transcript. However, as noted above, by his own account, the Veteran’s symptoms began in the 1990s, approximately 20 years after his separation from service. As such, this is not the type of lay-observable cause-and-effect relationship contemplated by Jandreau. Thus, the Veteran is not competent to provide a nexus opinion in this case. Alternately, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran’s nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2017). Turning to the question of secondary service connection, the Board notes that the Veteran has a diagnosis of schizophrenia. He is currently service connected for degenerative joint disease of the lumbosacral spine. The remaining question is whether the Veteran’s current psychiatric condition is causally related to his service connected back disability. The Veteran had initially claimed service connection for depression secondary to his service connected back disability. See February 2011 claim. Again, no opinion was provided on the issue of secondary service connection. Here, the Board finds that there is no indication from the record that the Veteran’s current schizophrenia can be linked to his service connected back disability. In his testimony, the Veteran described only a relationship between his psychiatric condition and the in-service accident, for which the Board has already determined there is not a sufficient evidentiary basis to require a medical nexus opinion. As neither the Veteran nor his healthcare providers has provided a causal link between his service connected back disability and his current schizophrenia, an opinion on the question of secondary service connection is unnecessary. See McLendon, 20 Vet. App. 79. There is no argument or evidence to the effect that his schizophrenia is due to his back disability. The Veteran’s contention was that his depression was due to his back disability and the March 2011 examiner provided an adequate explanation that his depression is due to his schizophrenia, not his back disability. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Therefore, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has PTSD due to his in-service vehicle accident. To establish entitlement to service connection for PTSD, the record must contain the following: (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). The preponderance of evidence is against a finding that the Veteran has a diagnosis of PTSD. The Veteran attended a VA examination in March 2011. The examiner identified a current diagnosis of schizophrenia, undifferentiated. The examiner addressed other possible psychiatric diagnoses, such as depression, but did not indicate that the Veteran had a diagnosis of PTSD, or indicate that referral was needed for a PTSD evaluation. The examiner explicitly stated that the Veteran did not have any other mental disorders, and that all reported symptoms were best accounted for under schizophrenia. The Veteran has had continued mental health treatment at VA medical centers. The Veteran has been screened for PTSD on numerous occasions as part of a preventative health screen. As noted in the JMR, the Veteran screened positive in September 2012 and May 2014. The PTSD screen performed was four questions, and in September 2012, the Veteran answered positively to three. He indicated that he had nightmares about his stressor, he tried hard not to think about it, or went out of his way to avoid situations that reminded him of it, and was constantly on guard, watchful, or easily started. He reported he did not feel numb or detached from others, activities, or surroundings. Following the positive screening, he was escorted to the office of Z.W., M.D., for further evaluation. Z.W. reviewed the results of the PTSD screen and evaluated the Veteran. He noted that the Veteran was already being seen by mental health for his psychiatric symptoms. He was given provider and emergency contact information and referred to the mental health clinic. The Veteran’s VA medical center mental health records indicate a consistent diagnosis of schizophrenia. The Veteran’s principle mental health provider, J.M., M.D., did not indicate any additional mental health diagnosis other than schizophrenia. Mental health treatment records do not indicate any diagnosis or mention of PTSD. In May 2014, the Veteran also screened positive for PTSD on a preventative health screen performed after he visited the VA medical center for a follow up visit for hypertension. Further intervention was recommended, but the Veteran refused. Of note, the Veteran screened negative for PTSD in August 2005, April 2007, November 2010, May 2011, December 2011, February 2016, and April 2017. As noted above, the Veteran has sought treatment for his mental health symptoms at VA medical centers and there is no evidence of record that he has been diagnosed with PTSD based a complete mental status examination and/or objective medical findings. The Board has considered whether a VA examination was required regarding PTSD. The Board finds the duty to obtain a medical examination for this claim was not triggered in this case as the record fails to show evidence of a current diagnosis of PTSD. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the positive PTSD screenings preformed as part of a preventative health screening are indicative of some mental health problems, the Veteran was receiving specialized mental during this period. Both the Veteran’s mental health providers and the VA examiner, who documented the Veteran’s complaints and performed a thorough clinical evaluation, did not indicate a diagnosis of PTSD. VA medical providers and the VA examiner found the Veteran’s symptoms were consistent with a diagnosis of schizophrenia. As such, the duty to obtain a medical examination was not triggered. (CONTINUED ON NEXT PAGE)   Without a current diagnosis of PTSD, the first requirement for establishing service connection for PTSD has not been met. Therefore, the Board finds the preponderance of the evidence is against the claim for service connection for PTSD. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel