Citation Nr: 18152026 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-24 888 DATE: November 20, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a psychiatric disability other than PTSD is remanded. FINDING OF FACT The evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a diagnosis of PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.125 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty between August 1973 and August 1976. The Veteran initially filed a claim to establish entitlement to service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court’s decision in Clemons and the diagnoses of record, the Board has expanded the Veteran’s claim to include consideration as to whether direct service connection may be warranted for any psychiatric disability. Entitlement to service connection for PTSD. The Veteran claims entitlement to service connection for PTSD. He specifically asserts that his current claimed disabilities are related to experiences during his service at the Demilitarized Zone (DMZ) in South Korea between 1973 and 1976. The Veteran has reported that during his active service at the DMZ in Korea, he was frequently on alert due to actions taken by North Korea. The Veteran specifically noted an instance in February of 1974 when North Korea sank a South Korean fishing vessel, which put his unit on alert. The Veteran also specifically noted the discovery of a tunnel created by North Korea at the DMZ in November 1974, which similarly put his unit on alert. The Veteran also noted an instance in May 1974 when he had to marshal a fellow soldier that had gone AWOL and described the experience as “unnerving and uncomfortable.” Additionally, The Veteran has described his experience at the DMZ as inducing a general amount of fear and anxiety. In support of his claim, the Veteran has submitted a private treatment report from Dr. H.J. from December 2013 indicating that he has PTSD, Depressive Disorder NOS, and Panic Disorder with Agoraphobia. Dr. H.J. linked the Veteran’s PTSD to his reported in-service stressors. Notably however, the Veteran also appeared for a post-service VA examination in December 2014. The VA examiner was unable to diagnose the Veteran with a mental health disorder due to what he determined to be the Veteran’s inaccurate self-report consistent with embellishment of symptoms. The examiner was nevertheless able to determine that the Veteran did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for a PTSD diagnosis. The examiner considered the Veteran’s stressor statements, but found that the Veteran’s reported stressful events that he experienced during his military service in Korea were insufficient to meet Criterion A for PTSD. As a result, the Veteran cannot meet DSM-5 criteria for a PTSD diagnosis, and it is less likely than not that this Veteran has PTSD. The VA examiner reviewed Dr. H.J.’s prior assessment, noting that Dr. H.J. similarly did not document any traumatic events that would meet Criterion A of DSM-5 for PTSD. Additionally, the VA examiner noted that Dr. H.J.’s report did not indicate that any objective psychological testing was used in the examination of the Veteran. Generally, to establish service connection, there must be (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). Specifically, the establishment of service connection for PTSD 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 a stressor event during active service; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of the DSM-5. 38 C.F.R. § 4.125(a) (2018). VA implemented DSM-5, effective August 4, 2014, and the Secretary of VA determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The RO originally certified the Veteran’s appeal to the Board in June 2016. Therefore, the DSM-5 is the governing directive for the Veteran’s claim. In certain circumstances, the requirements for corroborating evidence of the claimed in-service stressor are eliminated if such is related to “fear of hostile military or terrorist activity.” Significantly however, the provision requires that a VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD, and that his symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). As noted above, in this case, the December 2014 VA examiner found that although the Veteran’s statements related to fear of hostile military activity, they were not adequate to support a diagnosis of PTSD under the DSM-5. The probative medical evidence of record is against a finding that the Veteran has a current diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a). The December 2014 VA examination is highly probative evidence, as it relied on sufficient facts and data, provided a rationale for the opinion, utilized subjective and objective psychological testing, based its reasoning on the DSM-5 criteria, and contains sound reasoning, with consideration of prior evidence of record to include Dr. H.J.’s private opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While Dr. H.J. did provide a PTSD diagnosis, the examination by Dr. H.J. does not contain sufficient explanation as to how the disability was diagnosed, or whether the DSM-5 criteria were used in assessing the Veteran. As pointed out by the December 2014 VA examiner, there is also no indication that Dr. H.J. utilized objective psychological testing in the PTSD diagnosis. Thus, the Board finds the December 2014 VA examiner’s reasoned conclusion that the Veteran does not have a PTSD diagnosis to be of greater probative value than Dr. H.J.’s unsupported opinion to the contrary. Although the Veteran is competent to report as to what he observes and feels, he is not competent to attribute his symptoms to a specific mental health diagnosis such as PTSD. Since the probative evidence of record confirms that the Veteran does not have PTSD, the Veteran’s service connection for PTSD is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). REASONS FOR REMAND Entitlement to service connection for a psychiatric disability other than PTSD is remanded. The Veteran has provided private medical treatment records from Dr. H.J., who has diagnosed the Veteran with depressive disorder NOS and panic disorder with agoraphobia, in addition to PTSD. Dr. H.J. provided an Axis IV assessment generally noting stressors related to service in a war zone, traumatic events, and psychosocial issues. As noted above, the evidence of record is against a finding that the Veteran has PTSD. The Board based this determination on the December 2014 VA examiner’s probative assessments described above. The December 2014 examiner was unable to diagnose any mental health disability based on invalid responses and exaggeration of symptoms by the Veteran. Although the December 2014 did not rule out the possibility the Veteran has a mental health disability [noting that “individuals who present with inaccurate self-report of symptoms may very well have mental health symptoms that are clinically significant and distressing”], the examiner called into question the findings of Dr. H.J., noting that Dr. H.J. did not utilize objective psychological testing in providing the diagnoses listed above. Due to the uncertainties surrounding the Veteran’s current diagnosis of psychiatric disabilities other than PTSD, the Veteran should be afforded a new VA examination to determine the nature and etiology of any potential psychiatric disability. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder other than PTSD. The entire claims file must be provided to the examiner for review. Any clinically indicated testing and/or consultations should be performed. The examiner should provide an opinion as to the following: (a) Identify all current psychiatric disorders other than PTSD. If a previously diagnosed disorder is not found, including depressive disorder NOS and panic disorder with agoraphobia, provide an explanation. (b) For any disability identified, determine whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veteran's service. The examiner should assume as true that the Veteran’s stated stressors are accurate and occurred as he has described. A complete rationale for any opinion offered must be provided. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel