Citation Nr: 18155199 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 13-10 423 DATE: December 3, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder is denied. Entitlement to service connection for a skin rash, to include porokeratosis (skin condition), to include as secondary to an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran has a current diagnosis of major depressive disorder. 3. The major depressive disorder was not incurred in, and is not otherwise related to, his active military service nor was it caused or aggravated by the Veteran’s service-connected right knee condition. 4. A skin condition is not shown to be related to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria to establish service connection for a skin condition, as secondary to an acquired psychiatric disorder, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from December 1993 to October 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal in April 2015 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2018, the Veteran’s attorney submitted a written request for a 60-day extension (i.e. until October 1, 2018), to submit additional evidence in support of this appeal. VA did not explicitly acknowledge the request for a 60-day extension; however, the Veteran’s attorney submitted additional argument in support of the Veteran’s claim on October 1, 2018. As the 60-day period has passed, and argument has been submitted, the Board may now proceed with review of this matter. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Establishment of service connection for PTSD in particular requires: (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). A diagnosis of PTSD must be in conformance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) criteria. Effective March 19, 2015, VA replaced outdated references with references to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). However, these provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran’s claim was certified to the Board prior to August 4, 2014; therefore, the regulations pertaining to the DSM-IV are for application. In addition to service connection on a direct basis, service connection may also be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Thus, the Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. For the reasons that follow, the Board finds that service connection is not warranted. Service treatment records are negative for a diagnosis of PTSD or other psychiatric disorders. VA treatment records since October 2010 note a diagnosis of PTSD. Diagnoses of major depressive disorder and anxiety disorder also are noted. A December 2012 VA intake note created after a telephone encounter shows that the clinician noted the Veteran appeared to meet the diagnostic criteria of PTSD as a result of military service. An April 2018 VA diagnostic assessment notes “PTSD, by history.” In April 2015, the Board remanded the appeal for, among other development, an examination and opinion on whether the Veteran has a current diagnosis of PTSD during the pendency of the appeal and, if so, whether such is related to his military service. Pursuant to the Board’s remand, the Veteran underwent a VA psychological examination in June 2018. During the examination, the in-service stressor the Veteran reported was an incident where a helicopter descended near him but did not result in an injury. The examiner noted that the stressor was not adequate to support a diagnosis of PTSD. The examiner found that the Veteran did not have a current diagnosis of PTSD under the DSM-IV or DSM-V criteria. The examiner explained that while the Veteran described some symptoms of PTSD, during the current exam, he did not endorse the frequency or severity of symptoms required to meet the criteria for a diagnosis of PTSD. The examiner further explained that not all stressful events are sufficient in magnitude to result in mental illness, and a stressful event alone does not indicate that someone will have the mental illness of PTSD. With regards to the diagnosis of PTSD noted in the Veteran’s VA treatment records, the June 2018 examiner explained that while she cannot comment on the Veteran’s clinical diagnosis and treatment provided, the exam she conducted was a forensic evaluation which differs from a clinical evaluation. She further explained that it is not uncommon for diagnoses given in a clinical treatment setting to not meet the rigors of a forensic evaluation. The Board finds that the Veteran does not have a current diagnosis of PTSD. As shown above, the medical record contains conflicting findings regarding the presence of PTSD. However, the Board finds that the competent and most persuasive medical evidence fails to show that the Veteran currently has a diagnosis of PTSD related to service stressors. The June 2018 opinion by the VA examiner is the most probative in this case. The examiner conducted a detailed examination of the Veteran and considered the Veteran’s reported symptoms and clinical history. While the Board is mindful of the diagnoses of PTSD made by other VA clinicians, the assessments and evaluations upon which those diagnoses were based were less comprehensive and thorough than the 2018 VA examination. Therefore, the Board assigns very little probative value to these assessments and finds that the June 2018 assessment by the VA examiner to be more persuasive. The Board also acknowledges the Veteran’s general contention that he has PTSD. However, the Veteran is not competent to provide such a diagnosis as diagnosing PTSD is a medically complex issue, and the Veteran does not possess the required training. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”). As the competent and probative evidence of record fails to reflect a current diagnosis of PTSD, service connection for PTSD is not warranted. The Board also finds that service connection is also not warranted for major depressive disorder. The Veteran contends that his major depressive disorder was caused or aggravated by his service-connected right knee disorder. The Board notes that the Veteran does not contend, and the evidence does not indicate, that the Veteran’s major depressive disorder is directly related to his military service. The evidence of record reflects a current diagnosis of major depressive disorder. See VA Treatment Records (2009-2018); June 2018 VA Examination. VA treatment records show that the Veteran was first diagnosed with major depressive disorder in March 2009. The June 2018 VA examiner opined that the Veteran’s major depressive disorder was less likely than not incurred in or caused by military service because the Veteran’s major depressive disorder began many years after his military service. The examiner further opined that the Veteran’s major depressive disorder was less likely than not proximately due to or the result of the Veteran’s service-connected right knee disorder. The examiner explained that the Veteran did not report any emotional distress related to his knee condition, and the Veteran did not report sufficient loss of physical functioning via the knee to result in causing a secondary mental health problem. In a June 2018 addendum opinion, the examiner opined that the Veteran’s major depressive disorder was not likely aggravated or permanently made worse by the service-connected right knee disability because the Veteran did not report any connection between his depressed thoughts and feelings and his knee. The Board finds these opinions, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, are highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s contention that a clarifying opinion is needed, in relevant part, because it is not clear that the Veteran was asked about his knee functioning. See October 2018 Correspondence. The Court has ruled that there is a “presumption of regularity” under which it is presumed that VA examiners and other government employees have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Board has reviewed the VA examination report and has found no clear evidence that the VA examiner did not conduct the examination in an appropriate manner. The fact that the examiner noted that the Veteran plays golf is evidence that she inquired as to his physical activities and functioning. Additionally, the VA examiner noted that she reviewed the Veteran’s claims file. As such, it is presumed she reviewed any relevant VA examinations and other medical records concerning the functioning of his right knee in rendering her opinion, if needed. In sum, the Board finds that a clarifying opinion is not needed. The Board acknowledges the Veteran’s assertion that major depressive disorder was caused or aggravated by his service-connected right knee disability. However, as this issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Since the competent and probative evidence of record fails to indicate that the Veteran’s major depressive disorder had onset in, or is otherwise related to service; or, that it was either caused or aggravated by the service-connected right knee disability, service connection is not warranted. As the preponderance of the evidence is against the claim under any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for a skin condition, to include as secondary to an acquired psychiatric disorder. The Veteran contends that his current skin condition is secondary to medication used to treat his psychiatric condition. Because the claim of service connection for the primary disability, a psychiatric disorder, is denied, the derivative claim of service connection for the secondary condition, a skin condition, cannot be granted on a secondary basis as a matter of law. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). Additionally, there is no evidence of record to indicate, and the Veteran does not contend, that his current skin condition is directly related to his military service. Accordingly, the claim is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel