Citation Nr: 18150866 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-40 912 DATE: November 16, 2018 ORDER Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), diagnosed as unspecified anxiety disorder, is granted. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran's psychiatric disorder, diagnosed as unspecified anxiety disorder, is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for PTSD have not been met. 38 U.S.C. § 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. 2. The criteria to establish entitlement to service connection for a psychiatric disorder other than PTSD, diagnosed as unspecified anxiety disorder, have been met. 38 U.S.C. § 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 2006 to November 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision. The Board notes that the March 2016 rating decision separately adjudicated the issues of entitlement to service connection for unspecified anxiety disorder and entitlement to service connection for PTSD. Although the Veteran only noted unspecified anxiety disorder in his April 2016 notice of disagreement, the Veteran's claimed PTSD is encompassed in his service connection claim for a psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the issue to include PTSD. 1. Entitlement to service connection for a psychiatric disorder, to include PTSD. 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; 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 3.304(f). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45, 094 (August 4, 2014). VA adopted as final, without change, this interim rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for VA Purposes, 80 Fed. Ref. 14,308 (March 19, 2015). The record shows that the RO certified the Veteran's appeal to the Board in August 2016, which is after August 4, 2014. Thus, the DSM-5 is applicable in the present case. The pertinent regulation provides that, if the evidence establishes that the Veteran engaged in combat with the enemy and that the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(1). For stressors unrelated to combat that are not based on fear of hostile military or terrorist activity, credible supporting evidence is necessary in order to grant service connection. Such evidence may be obtained from service records or other sources. See Moreau v. Brown, 9 Vet. App. 389 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Therefore, the Veteran's lay testimony, is insufficient, standing alone, to establish service connection. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Effective July 13, 2010, 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 PTSD 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 that 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 (IED); 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 physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39843, 39852 (July 13, 2010) (now codified at 38 C.F.R. § 3.304(f)(3). The Veteran contends that he has a psychiatric disorder, to include PTSD, that is related to his active service. The Veteran reported that during service, he was deployed to Afghanistan from 2010 to 2011 for a year. See February 2016 VA examination. The Veteran denied ever directly participating in combat, but he stated that he was the intelligence lead for a combined explosives exploitation cell. The Veteran stated that he primarily worked in a forensics lab investigating the aftermath of IEDs. Although there were no human remains, the Veteran recalled that some items had blood stains and “smelled of death.” He additionally described working as forensic photographer. See December 2015 VA Form 21-0781. He also reported that during his deployment, there were weekly to monthly rocket and mortar attacks, with the closest event occurring 1500 meters away from the Veteran. The Veteran has asserted that these attacks as well as possible suicide attacks comprised his constant exposure to life-threatening situations in Afghanistan. See December 2015 VA Form 21-0781. The Veteran’s DD 214 documents that the Veteran’s military occupational specialty was intelligence analyst. In addition, he had service in Afghanistan from August 2010 to August 2011. His military personnel records also show that during this period, the Veteran worked as an S2 analyst, forward deployed to Afghanistan (FWD AF), with the 83rd Chemical Battalion. The Board notes that the S2 Brigade’s staff mission is to provide 1st Information Operations (IO) Command and Army/Ground Forces with actionable and tailored intelligence in support of operations planning and execution. See Bigrade Staff: S2, 1st IO Command: Victory through the Power of Information, http://www.1stiocmd.army.mil/Home/brigade_s2. Consequently, the Board finds that there is sufficient credible supporting evidence to establish Veteran's described work with IED remnants during service. At the time of the Veteran’s entrance into active service and during the early portion his service, the Veteran’s service treatment records (STRs) are silent for any psychiatric complaints, treatment, or diagnoses. See October 2006 Enlistment Examination and Report of Medical History; Pre-Deployment Health Assessments dated in August 2008, July 2009, and October 2009; Military Primary Care Screenings dated in June 2009, July 2009, September 2009, January 2010, February 2010, and March 2010. Later in March 2010, a memorandum for the medical board noted that the Veteran was seen, evaluated, and treated in behavioral health. He had psychiatric diagnoses of adjustment disorder with disturbance of emotions, adjustment disorder, attention-deficit/hyperactivity disorder (ADHD), and insomnia. The chief of psychiatry opined that the Veteran did not have a psychiatric condition that would warrant processing through medical channels such as a medical board. His mental health condition met retention standards. In a subsequent Military Primary Care Screening dated in May 2010, the Veteran denied feeling down, depressed or hopeless; having little pleasure in doing things; or having any frightening, horrible, or upsetting experiences in the past month. A VA examination related to the Veteran’s claim was conducted in February 2016. Despite the discussion in the service treatment records regarding psychiatric symptoms in March 2010, the Veteran informed the examiner that his current mental health symptoms began within a year of his discharge from the military. See February 2016 VA examination. The Veteran reported that he noticed a heightened sensitivity to loud and unexpected noises. He also reported that he would jump, shake, and have a racing heart. The Veteran added that when approached from behind, he became quite anxious, irritated, and had to fold his hands and take deep breaths. In addition, the Veteran described having “low lows” with periods of feeling sad or down, fleeting thoughts of self-harm in the past, and negative thinking. The Veteran is competent to report the history of his psychiatric symptoms, and the Board finds him credible as there is no contradictory evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner determined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5. However, the examiner did find that a diagnosis of unspecified anxiety disorder was appropriate. The examiner explained that this diagnosis was consistent with the Veteran’s reported symptoms, his presentation at the time of the interview, and his responses to the clinical interview. He had prominent anxiety symptoms that did not meet the criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood. Symptoms that were associated with his diagnosis included feeling sad or down, nervousness, feeling geared up, and irritability. The examiner noted that the criterion for a PTSD diagnosis had been ruled out by the Veteran’s inability to point to any specific event during his military service that was causative for his symptoms. Despite this fact, the examiner found that the Veteran’s military experiences were likely to lead to the development of anxious symptoms. Such experiences included, but were not limited to, deployments to a combat/conflict zone where he regularly heard the detonation of mortars/rockets, and work within a forensics lab where the residuals of IEDs were investigated. Consequently, the examiner opined that the Veteran’s symptoms of unspecified anxiety disorder were most likely caused by, or a result of, his military service. Based on the foregoing, the Board finds that the Veteran does not have a current diagnosis of PTSD. The February 2016 VA examiner’s determination is entitled to great probative weight as it was based on the examiner’s medical expertise, and he provided a complete rationale to explain why the DSM-5’s criteria for a PTSD diagnosis had not been satisfied. In addition, there is no other PTSD diagnosis of record to counter the examiner’s conclusion. The existence of a current disorder is a required element of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence does not support a finding that the Veteran has had PTSD at any point during the claim period or shortly before the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Consequently, service connection for PTSD is not warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304. To the extent that the Veteran contends that he has PTSD related to a stressor event in service, the Board notes that the Veteran is not competent as a layperson to establish a diagnosis of a psychiatric disability based on his own personal observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The diagnosis of a psychiatric disorder such as PTSD is a complex question that requires medical expertise. As such, the Veteran's statements on this matter lack probative value. However, the Board does find that the Veteran's diagnosed unspecified anxiety disorder is related to active service. In terms of the question of nexus, the February 2016 VA examiner’s opinion reflects that the Veteran’s unspecified anxiety disorder is at least partly related to his conceded work during service in a forensics lab where IEDs were investigated. Although initially conceded based on the requirements to establish stressors for a service connection claim for PTSD, the Board also finds that these reported duties may be accepted as credible and consistent with the circumstances of his service for the purposes of his service connection claim for a psychiatric disorder other than PTSD. 38 U.S.C. § 1154(a). The Board finds that the examiner’s opinion is highly probative as it was based on a review of the evidence of record as well as clinical findings from the examination, and it was supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, there is no negative evidence to weigh against the examiner’s conclusion. Service connection for a psychiatric disorder other than PTSD, diagnosed as unspecified anxiety disorder, is therefore granted. 38 C.F.R. §§ 3.102, 3.303(d). Although the Veteran has received a diagnosis for different psychiatric disorders other than PTSD during the appeal period, the evidence does not differentiate symptoms attributable to unspecified anxiety disorder versus those due to other diagnoses. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board considers all manifested psychiatric symptoms as being due to his unspecified anxiety disorder. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel