Citation Nr: 18155877 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-07 025 DATE: December 6, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disability other than PTSD, to include anxiety, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for memory loss is remanded. The issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has PTSD due to an in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to January 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and a September 2016 rating decision by the VA RO in Pittsburgh, Pennsylvania. In her February 2013 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge via video-conference. The hearing was scheduled for April 2016, but the Veteran did not attend. She has not offered good cause for her failure to appear at the hearing or request that such be rescheduled. Therefore, the Board considers her request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d) (2016). This case was previously remanded by the Board in May 2016 and November 2017. The case has been returned to the Board for review. In September 2016, the RO issued a rating decision that denied the Veteran’s claims for entitlement to service connection for anxiety, entitlement to service connection for memory loss and entitlement to a TDIU. Thereafter, she filed a notice of disagreement in February 2017; however, as will be discussed further below, a statement of the case has not been provided as to those issues. See Manlincon v. West, 12 Vet. App. 238 (1999). 1. Entitlement to Service Connection for PTSD The Veteran asserts that she has PTSD due to an in-service stressor. She reports that a fellow soldier pushed her to the ground with the intent of raping her. See VA Form 21-0781a, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, received March 2016. 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 an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). For cases certified to the Board on or after August 4, 2014, such as this case, the diagnosis of PTSD must be in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.125 (a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-5). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f) (5). The evidence of record shows that the Veteran was diagnosed with PTSD in June 2016. See June 2016 VA examination. Therefore, there is evidence of a current disability. As to a link, established by medical evidence, between current symptoms and an in-service stressor the only opinion of record is the June 2016 VA examination which weighs against the Veteran’s claim. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran described the in-service stressor of being isolated in the woods with a fellow service member who pushed her to the ground and made a mean face at her. She further stated that she thought the fellow service member was going to rape her. Upon examination, the Veteran reported several other traumatic experiences not related to her active military service. Specifically, the Veteran stated that she was raped by her cousin in July 2015. The June 2016 VA examiner opined that the Veteran’s current PTSD is due to non-military trauma, to include her 2015 rape by her cousin. As to the in-service event, the VA examiner stated the incident with the fellow service member is not of a sufficient severity to meet criterion A of the PTSD diagnostic criteria. The VA examiner further stated that there is insufficient evidence to suggest that the Veteran’s in-service stressor, which is relatively mild in comparison to her non-military traumatic events, either caused or aggravated any existing mental disorder. The only evidence indicating an association between the Veteran’s PTSD and an in-service stressor are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of PTSD is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current PTSD is related to her in-service stressor does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of PTSD. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay statements provided by the Veteran are not competent evidence as to whether her PTSD, is related to an in-service stressor. Moreover, such a finding is not supported by the record. Specifically, the June 2016 VA examiner opined that the Veteran’s PTSD is linked to non-military traumatic events not an in-service stressor. In summary, the most probative evidence of record does not contain a link, established by medical evidence, between the Veteran’s current symptoms and an in-service stressor. As such, the criteria for entitlement to service connection for PTSD have not been met. 38 C.F.R. § 3.304 (f). Therefore, the Board finds that the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to Service Connection for an Acquired Psychiatric Disability other than PTSD, to include Anxiety, to include as secondary to Service-Connected Disability The Veteran contends that she currently has an acquired psychiatric disability that is directly related to her active service or secondary to her service-connected disabilities. See Claim for Service Connection, received January 2011. In May 2016, the Board remanded the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder in order to identify all current acquired psychiatric disorders that have been present during the appeal period and to opine as to whether they are related to her active military service. In June 2016, the Veteran was provided a VA examination related to her PTSD. However, she has not been provided an examination related to acquired psychiatric disabilities other than PTSD as directed by the May 2016. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). The Board notes that June 2016 PTSD examiner noted diagnoses of dysthymic disorder and major depressive disorder. The VA examiner opined that the Veteran’s dysthymic disorder and major depressive disorder were less likely than not caused by, related to, or incurred during her military service. However, the June 2016 PTSD examiner did not provide an opinion as to whether the Veteran’s acquired psychiatric disabilities are caused by, or aggravated by her service-connected disabilities. As such, the June 2016 VA PTSD examination is inadequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to Service Connection for for Memory Loss, and Entitlement to a TDIU A September 2016 rating decision denied entitlement to service connection for anxiety, entitlement to service connection for memory loss and entitlement to a TDIU. A timely notice of disagreement was received by VA in February 2017 concerning the denial of entitlement to service connection for these issues. A statement of the case (SOC) has not been issued as to entitlement to service connection for memory loss and entitlement to a TDIU. See Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, a supplemental statement of the case has not been issued as to the September 2016 rating decision denial of entitlement to service connection for anxiety. The Board is required to remand the issues for issuance of a SOC and SSOC. Id. The matters are REMANDED for the following action: 1. Provide the Veteran and her representative with a statement of the case with respect to the September 2016 rating decision concerning the issues of entitlement to service connection for memory loss, and entitlement to a TDIU, pursuant to the February 2017 notice of disagreement, with consideration of any additional evidence, and supplemental statement of the case as to entitlement to service connection for anxiety, with consideration of any additional evidence. The appropriate period should be allowed for response. The Veteran should be informed that she must file a timely substantive appeal to perfect an appeal to the Board of the September 2016 rating decision as to the issues of entitlement to service connection for memory loss, and entitlement to a TDIU. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (b) (2017). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disability other than PTSD. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for each acquired psychiatric disability other than PTSD demonstrated since service, found on current examination or in the record. (b.) For each psychiatric disability other than PTSD, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to her active service. Rationale must be provided for the opinion proffered. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability other than PTSD is proximately due to or the result of the Veteran’s service-connected disabilities, specifically to include her service-connected asthma. Rationale must be provided for the opinion proffered. (d.) If not, whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability other than PTSD was aggravated by the Veteran’s service-connected disabilities, specifically to include her service-connected asthma. Rationale must be provided for the opinion proffered. “Aggravation” is defined as a permanent worsening beyond the natural progression of the disease. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for an acquired psychiatric disability, other than PTSD, may be granted. If the benefit sought   remains denied, furnish the Veteran and her representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel