Citation Nr: 18151259 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-50 544 DATE: November 16, 2018 ORDER 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 2. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include depressive disorder, is denied. REMANDED 3. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD, under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 2. The Veteran’s acquired psychiatric disorder, to include depressive disorder, did not have its onset in service, is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). 2. The criteria for service connection for an acquired psychiatric (other than PTSD), to include depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1971 and from November 1976 to November 1980, with additional reserve service. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran asserts that service connection for PTSD is warranted because it is caused by or otherwise related to his military service. The Veteran contends that while in service aboard the U.S.S. Denver in July 1979, he was accused of stabbing a fellow shipmate and charged with assault with a deadly weapon, demoted, subject to a special court martial, and sent to a military detention center for 5 months, but was later acquitted of charges. See 1) August 2012 Statement in Support of Claim for PTSD; 2) September 2013 Notice of Disagreement; and 3) July 2013 VA examination report. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD, which conforms to DSM-5, as specifically required for service-connection for PTSD. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran was provided an initial PTSD VA examination in July 2013. The examiner indicated that the Veteran did not have a diagnosis of PTSD, which conformed with Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria. The examiner indicated that the Veteran had another mental disorder diagnosis of depressive disorder, NOS (not otherwise specified). The Veteran reported his stressor of being charged with assault with a deadly weapon described above. The examiner found that the claimed stressor did not meet the Criterion A for PTSD and that the Veteran did not have related recollections (Criterion B) nor persistent avoidance (Criterion C). The Veteran has asserted that he has a current diagnosis of PTSD, including in an August 2013 statement, where he referenced a positive PTSD screen in February 2008. The PTSD screen was based on 4 questions and not the full DSM criteria as required for service connection. 38 C.F.R. §§ 3.304(f), 4.125(a). Furthermore, in a March 2015 VA mental health substance abuse individual note, it was noted that when asked if he had ever received a psychiatric diagnosis, the Veteran answered, “Yes, PTSD, but it wasn’t called that in 1971.” The mental health professional indicated that the Veteran self-described as having PTSD but did not appear to meet Criterion A, Criterion B, nor Criterion C, but that the Veteran did state that he was hypervigilant. The Veteran asserts that he has a current diagnosis of PTSD, however, lay assertions do not constitute a competent clinical diagnosis of PTSD. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran has proffered a February 2008 positive PSTD screen based on 4 questions, however, a VA mental health professional in March 2015 and a VA examiner in July 2013 have made specific findings that the Veteran does not have a diagnosis of PTSD, which conformed to DSM criteria after thorough examination. The Veteran has not offered other competent medical evidence in support of his assertion that he has a current diagnosis of PTSD. In the absence of a qualifying current diagnosis for PTSD, which conforms to DSM-5, service connection for PTSD cannot be established. See 38 C.F.R. §§ 3.304(f), 4.125(a); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against the claim of service connection for an PTSD, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD). The Veteran asserts that service connection for an acquired psychiatric disorder (other than PTSD) is warranted because it is caused by or otherwise related to his military service. The Veteran contends that while in service aboard the U.S.S. Denver in July 1979, he was accused of stabbing a fellow shipmate and charged with assault with a deadly weapon, demoted, subject to a special court martial, and sent to a military detention center for 5 months, but was later acquitted of charges. See 1) August 2012 Statement in Support of Claim for PTSD; 2) September 2013 Notice of Disagreement; and 3) July 2013 VA examination report. The Veteran has a current diagnosis of an acquired psychiatric disorder. The Veteran was provided an initial PTSD VA examination in July 2013. The examiner indicated that the Veteran had another mental disorder diagnosis of depressive disorder, NOS (not otherwise specified). The examiner noted that the Veteran presented with a history of depressive symptoms, anxiety, and irritability. The Veteran reported his stressor of being charged with assault with a deadly weapon described above. Accordingly, the first element of service connection is met. However, the Board finds that service connection for an acquired psychiatric disorder is not warranted because the evidence of record does not establish the required nexus between the disorder and the Veteran’s military service. While the Veteran has a diagnosis of depressive disorder, NOS, the VA examiner in July 2013 opined that this diagnosis is likely not related to his July 1979 trial and acquittal of assault with a deadly weapon. The examiner stated that the Veteran met the criteria for a non-service related depressive disorder, NOS, that has to do with personal, family and social factors rather than with military service issues. The Board has also reviewed service treatment records and personnel records for evidence that the Veteran’s current acquired psychiatric disorder was incurred in service or otherwise caused by service and finds the preponderance of the evidence is against such a relationship. An August 1979 service treatment records reflects that the Veteran was treated for acute anxiety over separation from family and family problems including an impending divorce. However, Reports of Medical Examination from March 1984 and April 1985 during reserve service revealed normal clinical evaluations for the Veteran’s psychiatric state, and no mention of any symptoms, complaints, or diagnosis related to an acquired psychiatric disorder. Furthermore, in the Veteran’s March 1984, January 1985, and April 1985 Reports of Medical History, the Veteran answered “no” when asked if he had then or ever had “frequent trouble sleeping;” “frequent or terrifying nightmares;” “depression or excessive worry;” loss of memory or amnesia,” and “nervous trouble of any sort.” There are numerous post-service VA medical records reflecting complaints and treatment for an acquired psychiatric disorder. However, these records do not provide a positive nexus regarding the onset, etiology, or relationship of an acquired psychiatric disorder to military service. A March 2015 VA mental health consultation note shows that the Veteran reported that he “has been down,” especially since his lung nodule diagnosis and next to his diagnosis of depression, the mental health professional noted that the Veteran described lung nodule diagnosis as a significant contributor. An August 2015 VA medical record also shows that the Veteran’s mood was “pretty good” but had been “up and down” due to challenges associated with coping with lung cancer. In addition, the July 2013 VA examiner noted that the Veteran had a history of irritability, anxiety, and depression for 2-3 years. The Veteran has not has submitted competent evidence that an acquired psychiatric disorder was caused by or is otherwise related to service. The preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include depressive disorder, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for a low back disability, to include degenerative disc disease, is remanded. The Veteran was most recently provided a VA examination in July 2013. The examiner provided the opinion that the Veteran’s low back disability is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that there is no continuum of care from 1977-1979. When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In review of the VA opinion provided in July 2013, the Board finds the opinion to be inadequate for adjudication purposes. The examiner’s only rationale is that there is no continuum of care from 1977-1979. When the “sole premise” of a medical conclusion is the “lack of notation or treatment” of claimed injuries or symptoms it is inadequate for rating purposes. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Furthermore, in a September 2013 Notice of Disagreement (NOD), the Veteran requested VA’s assistance in obtaining service treatment records from August 1977, September 1977, July 9, 1980, and July 31, 1980. The Veteran stated that he “thoroughly believes that at the time of his pilonidal cystectomy he also complained of head and back pain at his lower extremities to the medial department aborad the U.S.S. Denver, a naval vessel.” The Veteran indicated that he complained of recurrent back pain at the dates listed above when he was on active duty in the U.S. Navy. The service treatment records appear to be associated with the claims file, however, were not addressed by the July 2013 examiner. Therefore, the Board finds that an addendum VA opinion is necessary to provide an adequate rationale and to address the Veteran’s contentions in the September 2013 NOD, specifically addressing the medical records referenced by the Veteran. The matter is REMANDED for the following action: 1. Return the Veteran’s claims file to the July 2013 VA examiner who performed the examination and provided the opinion for the claimed low back disability or to a qualified medical professional if the examiner is unavailable, to provide an addendum opinion. If the examiner finds that an examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The VA examiner’s attention is drawn to the following: • In a May 2012 statement, the Veteran specifically stated that he was not appealing the denial of his low back disability as secondary to his service-connected left and right knee disabilities. The Veteran indicated that in September 1977 he underwent pilonidal cystectomy under spinal anesthesia. See VBMS entry with document type, “VA 21-4138 Statement in Support of Claim,” receipt date 05/16/2012. • In a September 2013 Notice of Disagreement (NOD), the Veteran stated that at the time of his pilonidal cystectomy (September 1977), he also complained of head and back pain at his lower extremities and subsequently complained of recurrent back pain. This is what he believes is the cause of his current lumbar spine disability. See VBMS entry with document type, “Notice of Disagreement,” receipt date 09/12/2013, on p. 7. • Service treatment records from August 1977, September 1977, July 9, 1980, and July 31, 1980 were referenced by the Veteran in his September 2013 NOD are of record. See 1) VBMS entry with document type, “STR – Medical - Photocopy,” receipt date 02/21/2012; 2) VBMS entry with document type, “STR – Medical - Photocopy,” receipt date 05/16/2012. • Of record is a March 2008 VA examination report for the low back. The examiner opined that “in view of the additional findings of the thoracolumbar spine on x-ray and history of injury shortly before his retirement from the postal service, it is less likely than not, that is less than a 50% probability that the lower back pain and history of degenerative joint disease are secondary to his degenerative disease of the right and left knee due to service.” See VBMS entry with document type, “VA Examination,” receipt date 03/21/2008. • Of record is the July 2013 VA examination report and opinion for the claimed low back disability. See VBMS entry with document type entitled “VA Examination,” received 07/23/2013. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions: a) Does the Veteran currently have a low back / lumbar spine disability? b) For each low back / lumbar spine disability offered, the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in service. c) For each low back / lumbar spine disability offered, the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) that such disability is caused by or otherwise related to service, to specially include the September 1977 pilonidal cystectomy. Please address the service treatment records from August 1977, September 1977, July 9, 1980, and July 31, 1980. d) If arthritis of the lumbar spine is found, but the answer to subparagraphs (b) and (c) above are “no,” then the examiner is asked to address whether it is at least as likely as not that arthritis arose within one year of separation from active military service in November 1980 (thus, in approximately November 1981). Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel