Citation Nr: 18150117 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-28 171 DATE: November 14, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), major depressive disorder, and a panic disorder is denied. FINDING OF FACT The Veteran does not have a diagnosis of PTSD linked to any corroborated in-service stressor and other diagnosed psychiatric disorders are not shown to have had an onset during service or to be related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, major depressive disorder, and a panic disorder, was not incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to November 1982 in the Army National Guards and from October 1991 to February 1996 in the United States Marine Corp. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes the Veteran originally filed his claim for service connection for PTSD. The Veteran’s claim has been expanded to include an acquired psychiatric disorder of major depressive disorder, panic disorder as well as PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Acquired Psychiatric Disability to Include Major Depressive Disorder, Panic Disorder and PTSD Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, such as psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b). The criteria for service connection for PTSD are slightly different for the criteria for other disabilities. Service connection for PTSD requires medical evidence diagnosing the condition; 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). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 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. 38 C.F.R. § 3.304 The Veteran claims that he has an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), major depressive disorder, and a panic disorder as result of active service in Saudi Arabia in 1990 to 1992. He indicated that he lived under constant threat of enemy mortars, rockets, sniper fire, IEDs, and landmines. His Certificate of Release or Discharge, DD-214, shows foreign service and his personnel records show that he was stationed in Saudi Arabia and participated in Operation Desert Shield in 1990 and Operation Desert Storm in 1991. Service medical records are negative for complaint, treatment, or diagnosis for a psychiatric disorder. A January 1996 separation examination revealed a normal clinical psychiatric evaluation. The Veteran denied having or ever having had depression or excessive worry in a January 1996 report of medical history. A March 2011 VA Mental Health Consultation notes that the Veteran was referred by his primary care physician for depression symptoms. A September 2014 private medical opinion by Dr. H. J. noted that the Veteran reported that he experienced flashbacks, nightmares, and night sweats from his service in Saudi Arabia from 1990 through 1992. The Veteran indicated that when he and his unit were stationed in Saudi Arabia and traveling across the desert, the would see Iraqi troops walking towards them across minefields. The Veteran also noted that he had witnessed a lot of death and destruction as well as scud missile attacks, mortar, and rocket attacks, IED’s. The examiner diagnosed the Veteran with Axis I: PTSD, major depression disorder, moderate to severe, without psychotic features, panic disorder with agoraphobia; Axis II: no diagnosis; Axis III: HTN, neck pain, due to have herniated disc disease, erectile dysfunction; Axis IV: stressors related to the service in the war zone, traumatic events, and psychosocial issues; Axis V: GAF 45. A March 2015 VA PTSD examination did not diagnose any PTSD disorder that conformed to DSM-5 criteria. The examiner opined that the Veteran did not meet criteria B-H for PTSD. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that there is no diagnosis of PTSD or any other mental health condition at this time. The examiner indicated that the Veteran claimed that any mental health symptoms he did currently have began in approximately 2011 and as a result they are not associated with past deployments or traumatic stressors. The examiner noted that the Veteran did endorse some symptoms consistent with PTSD (and related conditions) when pressed by him [this examiner], and he described valid Criterion A stressors, but his report suggested any symptoms he has are were well-below the clinical threshold warranting diagnosis. The examiner noted that in September 2014, Dr. H. J. reported that the Veteran had extensive mental health symptoms resulting in diagnosis of PTSD; major depressive disorder, moderate to severe; and panic disorder with agoraphobia resulting in a GAF of 45. The examiner indicated that during the present examination the Veteran did not describe sufficient symptoms to warrant any diagnosis - despite some evidence of some symptom embellishment. The examiner reported that many of the symptoms identified in Dr. H..J.’s report were directly denied by the Veteran during his examination (e.g. agoraphobia, flashbacks, or nightmares). The examiner noted that Dr. H. J.’s records do not indicate that any psychological testing or validated structured interview was conducted, no records were reviewed by Dr. H.J., and his report included a listing of numerous vague symptoms which appears largely templated and not specific to the Veteran. Furthermore, it is noted that a GAF of 45 (as assigned by Dr. H.J.) is suggestive of someone who has serious symptoms or serious impairment in social, occupational, or school functioning; however, the Veteran did not describe a level of impairment at any time during his life suggestive of a 45 GAF during the current clinical interview - nor is such a GAF consistent with his long (and continued) employment history, interaction with other people, and continued social involvement. The examiner indicated that the discrepancy between Dr. H. J.’s evaluation report and the Veteran’s current presentation (as supported by all other records) was difficult to reconcile, but it appears Dr. H. J.’s report is a discrete data point that is not consistent with the Veteran’s actual mental health history (symptoms or treatment). The weight of the evidence is against finding that the Veteran currently has, or has had since filing his claim, an acquired psychiatric disorder, to include PTSD, major depressive disorder, and a panic disorder. Although the Board is aware that various psychiatric disorders such as PTSD, major depressive disorder, and a panic disorder have been previously diagnosed, greater probative value is placed on the conclusions of the VA examiner’s determination that a diagnosis for these disorders is not warranted. The Federal Circuit has recognized the unique probative value of opinions provided by VA psychiatric examiners in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). As service connection is not for application unless the evidence indicates that a current disability exists, service connection is not warranted for an acquired psychiatric disorder to include PTSD, major depressive disorder, and panic attacks. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In determining that the Veteran does not have a current diagnosis of PTSD, major depressive disorder, and panic attacks, the Board takes note of the holding by the United States Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007), where it stated that a disorder need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication. However, McClain is not applicable here, as this is not a situation where the Veteran had a legitimate prior diagnosis that has since resolved. Here, the Board has determined that the weight of the clinical evidence is against the conclusion that he had ever been diagnosed with an acquired psychiatric disorder to include PTSD, major depression disorder, and panic attacks. In so finding, the Board has considered the September 2014 private medical opinion by Dr. H. J. resulting in diagnosis of PTSD; major depressive disorder, moderate to severe; and panic disorder with agoraphobia. However, the Board affords this opinion far less probative weight than the March 2015 VA opinion. Specifically, Dr. H. J.’s opinion did not indicate that any psychological testing or validated structured interview was conducted, and no records were reviewed by Dr. H. J. The March 2015 examiner noted that Dr. H. J.’s report included a listing of numerous vague symptoms which appeared largely templated and not specific to Veteran. Therefore, because Dr. H. J.’s diagnosis of PTSD, major depressive disorder, and panic disorders with agoraphobia s not supported by the evidence of record and is more or less conclusory in nature, it is afforded minimal probative weight. The Board affords great probative weight to the March 2015 VA examiner’s opinion because it is based on the application of sufficient facts and data applied to reliable principles and methods. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The negative findings of the 2015 examination were also based on clinical testing and consideration of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). Thus, the Board chooses to accord greater probative weight to the substantial medical evidence showing the Veteran does not have PTSD or any other mental health condition at this time. Without a current diagnosis of PTSD, or indeed of any mental health disorder linked to service, the Veteran’s claim must be denied for lack of a current disability. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection an acquired psychiatric disorder, to include PTSD, major depressive disorder, and panic attacks. Therefore, this claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2015), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel