Citation Nr: 1815181 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-23 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1980 to August 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing before the undersigned in October 2016. In April 2017, the Board remanded the issue on appeal for further development. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD. 2. The preponderance of the evidence is against a finding that an acquired psychiatric disability, to include major depressive disorder, was initially manifested during or is otherwise etiologically related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125, 4.130 (2017). 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.301, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Accordingly, the Board will address the merits of the claim. II. Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that she has suffered from depression and PTSD since 1981 when, while stationed in Germany during active duty service, she became pregnant and had an abortion. She stated that when the pregnancy was discovered, she was given no choice to be reassigned or have other arrangements made and was told to have an abortion. The Veteran indicated that the father gave her money to fly to Ft. Lauderdale, Florida, to have the abortion. The Veteran stated that abortion was against her religion and her mother wanted her to keep the baby, but the military sent her home right away to terminate the pregnancy. See, e.g., February 2009 claim; March 2009 Veteran statement; May 2009 VA treatment record; October 2016 hearing transcript. PTSD Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (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). In this case, while the Veteran has asserted she has experienced PTSD, she has not been shown to be competent to render a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no medical evidence in the record establishing that the Veteran has been given a diagnosis of PTSD. A May 2017 VA examiner opined that a PTSD diagnosis was not warranted. The examiner noted that prior VA PTSD screens had consistently been negative, and an MST screen was also negative. The examiner noted that the Veteran has never been formally diagnosed with PTSD by her treating providers and did not meet the PTSD criteria during the examination. The examiner concluded that, overall, the available evidence did not support a diagnosis of PTSD. Therefore, because the Veteran does not have a currently diagnosed PTSD disability, the Board finds that service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Acquired Psychiatric Disorder Turning next to the Veteran's other diagnosed psychiatric disorder, with respect to the first Shedden element, the Veteran has been diagnosed with major depressive disorder and unspecified depressive disorder with anxious distress. See, e.g., October 2007 VA treatment record; October 2010 VA treatment record; May 2017 VA examination. As for the second Shedden element, there is no evidence of an in-service incurrence or aggravation of any acquired psychiatric disorder. In a June 1980 report of medical history, provided at enlistment, the Veteran reported that she had never experienced depression, trouble sleeping, nightmares, loss of memory, or nervous trouble of any sort. In a June 1980 enlistment examination, the Veteran was noted to have no nervous conditions and she was evaluated as clinically normal. A May 1983 medical screening questionnaire noted no change in the Veteran's personality which resulted in the Veteran being depressed or having a labile personality. Next, considering the third Shedden element, the weight of the evidence is against a finding that the Veteran's currently diagnosed psychiatric disorder is etiologically related to her active duty service. The only etiological opinion of record is against a finding that the Veteran's currently diagnosed psychiatric disorder is related to her active duty service. The Veteran was afforded a VA examination in May 2017. The examiner reported that the Veteran had multiple diagnosed mental disorders, including unspecified personality disorder and unspecified depressive disorder. The examiner reported that the Veteran had significant personality pathology that was consistent with unspecified personality disorder with cluster b features, and also met the criteria for unspecified depressive disorder with anxious distress. The examiner stated that such a diagnosis was consistent with the diagnosis or major depressive disorder that had previously been rendered by her treating mental health providers. The examiner opined that the Veteran's diagnosed depressive disorder was less likely as not (less than 50/50 probability) incurred in or otherwise related to her active military service. The examiner explained that the Veteran never sought mental health treatment while in service and first sought treatment in 2007; 26 years after the Veteran had an abortion in 1981 and 24 years after leaving active duty. The examiner further explained that in the intervening years, the Veteran went through a significant number of events, including: significantly chaotic/dysfunctional romantic relationships; significant emotional/physical abuse in romantic relationships; a second pregnancy that was terminated with another abortion; the deaths of both her mother and father in close proximity to each other; suffering an injury while on the job that rendered her disabled; and marked personality pathology which significantly impacted her psychosocial functioning. The examiner opined that, when evaluating the record in its entirety, the evidence indicated that the onset of the Veteran's diagnosed depressive disorder occurred post-military and was likely due to significant post-military events, along with personality pathology. The Board finds the May 2017 opinion to be adequate and reliable and affords it great probative weight. Moreover, it stands uncontradicted by any other competent opinion of record. Although the examiner diagnosed unspecified personality disorder with cluster b features, VA regulations provide that congenital or developmental defects, personality disorders, and mental deficiency are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c); see also Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003). VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90. However, as discussed above, there is no evidence to warrant such a finding in this case. The Board acknowledges that in support of her claim, the Veteran has provided a number of statements from family members and friends indicating that the Veteran experienced depression while in service and has continued to experience depression since. In a February 2009 statement, the Veteran's sister, reported that she recalled the Veteran being told by an Army doctor that she had to terminate the pregnancy, and that the Veteran is now depressed. Also in February 2009, a friend stated that she had known the Veteran for 30 years, including while the Veteran was in the Army. She stated that when the Veteran came home in May 1981, she was very upset and did not know what to do. She recalled that the Veteran was threatened by the Army that if she did not return she would be arrested and was in state of depression before terminating the pregnancy, and still cried uncontrollably when the past was brought up. In March 2009 and October 2011 statements, another sister of the Veteran, reported that the Veteran had an abortion in Florida in May 1981, which was against their religion. She stated that the Veteran wanted to keep the pregnancy, but was told by the father that she had to terminate. According to this sister, the Veteran felt depressed because she felt like she had no choice. She reported that the Veteran never received grief counselling and was very depressed when she returned to Germany. While these lay witnesses, as well as the Veteran, are competent to report symptoms capable of lay observation, neither the Veteran nor any of the lay witnesses have been shown to be competent to render a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007). Absent medical training, certification, or other supporting medical findings, these lay statements alone are insufficient to establish an in-service diagnosis of a psychiatric disorder or an etiological link between the currently diagnosed psychiatric disorder and service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d, 1372, 1376-7 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1). The Veteran has been allowed ample opportunity to furnish medical evidence in support of her claim, but she has not done so. 38 U.S.C. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs