Citation Nr: 20002912 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 16-19 443 DATE: January 14, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a medical diagnosis of PTSD. 2. The preponderance of the evidence of record is against finding that the Veteran’s acquired psychiatric disorder, diagnosed as depression and anxiety, began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a pair of rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO): a December 2013 rating decision that denied service connection for an acquired psychiatric disorder, and an April 2016 rating decision that denied entitlement to a TDIU. As an initial matter, the Board acknowledges that the Veteran’s representative has reported that, to the best of their knowledge, the Veteran was deported in mid-2019 and is currently living in Cambodia. October 2019 Notice of Disagreement (NOD). The Board notes that the claims file indicates that the Veteran was detained by the United States Immigration and Naturalization Service (INS) at the Bristol County House of Corrections in April 2019 and released in June 2019. See October 2019 VA Form 21-4193; October 2019 Bureau of Prisons Match Notification. Factual Background. The Veteran is seeking service connection for an acquired psychiatric condition, to include PTSD and has claimed entitlement to a TDIU. The Veteran’s service treatment records (STRs) note feelings of depression and worry upon separation from service attributable to having problems at work and not having a job upon release. Medical-STR. The Veteran has asserted that he received treatment in the 1990s at NRI Community Services (NRI), The Providence Center, and SSTAR, facilities that treat mental health and substance abuse. While SSTAR was able to confirm that he had received treatment at their facilities, they were able to provide any records or documentations due to the passage of time since the Veteran’s treatment. See November 2013 SSTAR Response. Likewise, due to the passage of time since the Veteran asserts he received treatment at The Providence Center and NRI, neither were able to provide any records or confirm that he had received treatment at their respective facilities. See November 2013 The Providence Center Response; November 2013 NRI Response. The Veteran’s VA medical records show that, in August 2010, he reported that he feels he has depression, anxiety, and PTSD. In January 2012, the Veteran was diagnosed with depression that was attributed to his trouble finding employment. In February 2012, the Veteran reported that his depression began in Cambodia at the age of 13, and that he was molested at the age of 14. See Providence VA Medical Center (VAMC) records, received November 2018 in CAPRI. In a December 2013 rating decision, the Veteran’s claim for an acquired psychiatric disorder (claimed as depression) was denied due to a lack of evidence of being related to military service. In April 2014, the Veteran reported that he has felt depressed and helpless since he was physically assaulted in-service by men from his base after being lured from his car to help someone. The Veteran stated that the assault resulted in an “egg” on his right upper forehead, a black eye, and scrapes on his face. In July 2014, the Veteran relayed that he had been lured to assist a broken-down vehicle, and that he had been beaten unconscious. See Providence VAMC records. In October 2015, the Veteran obtained a private medical opinion, in which Dr. R.G.H. diagnosed the Veteran with PTSD. Dr. R.G.H. opined that the Veteran’s PTSD was a result of the claimed in-service physical assault as well as racial discrimination and harassment. With respect to the in-service physical assault, Dr. R.G.H. noted that the Veteran relayed having been dragged from his car and assaulted by some of his fellow soldiers. See October 2015 Private Medical Opinion. In December 2015, the Veteran submitted a statement regarding the in-service physical assault. The Veteran stated that he had been trying to give a ride to someone from his company who was “in trouble” with some engineers. He relayed that his car wouldn’t start, and the engineers were shaking it, so he got out and they attacked him. See December 2015 Veteran’s Statement. In a February 2016 VA examination, the Veteran was provided a diagnosis of depression with anxious distress. The examiner noted that the Veteran specifically denied any re-experiencing symptoms or hypervigilance, and that while the Veteran may have experienced symptoms of PTSD in the past, the Veteran did not presently report symptoms consistent with PTSD. See February 2016 VA Initial PTSD Disability Benefits Questionnaire (DBQ). Analysis. 1. Entitlement to service connection for PTSD is denied. The Veteran is seeking service connection for PTSD that he claims is the result of his military service. The Veteran claims his in-service stressors are a 1982 physical assault as well as racial discrimination and harassment. See, e.g., October 2015 Private Medical Opinion. In claims of service connection for PTSD, to meet the requirements for service connection, the record must show: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred in service; and (3) medical evidence of a causal nexus or link between current symptomatology and the specific claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304(f). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports. 38 C.F.R. § 3.159 (a)(1). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds persuasive or unpersuasive, and proving reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not afforded each piece of evidence contained in the record as every item of evidence does not have the same probative value. Id at 57. The Board has carefully reviewed the evidence of record but finds that service connection for PTSD is not warranted as there is no competent medical evidence showing a diagnosis of PTSD. The Veteran’s medical treatment records of record show that, though the Veteran has intermittently asserted that he believes he has PTSD, he has consistently been diagnosed with depression and anxiety, but not PTSD. See Providence VAMC records, received November 2018 in CAPRI. Additionally, in February 2016, the Veteran was afforded a VA examination, in which the Veteran was provided a diagnosis of depression with anxious distress. The examiner stated that, while the Veteran may have experienced PTSD symptoms in the past, the Veteran did not presently report symptoms consistent with PTSD. The examiner specifically noted that the Veteran denied any re-experiencing symptoms or hypervigilance. See February 2016 VA Initial PTSD DBQ. The Board acknowledges that the Veteran submitted a private medical opinion, in which Dr. R.G.H. diagnosed the Veteran with PTSD. In formulating the diagnosis, Dr. R.G.H. stated, without elaborating, that the Veteran experiences recurrent and intrusive nightmares and flashbacks of the in-service physical assault, which place him in “extreme clinical distress.” See October 2015 Private Medical Opinion. However, the Veteran’s medical records are silent with respect to such claims. See Providence VAMC records. Further, as noted above, in the February 2016 VA examination (approximately four months after Dr. R.G.H.’s opinion) the Veteran specifically denied any re-experiencing symptoms. See February 2016 VA Initial PTSD DBQ. As such, the October 2015 private medical opinion appears to be based on an inaccurate factual premise, and therefore is inadequate for decision making purposes. See Reonal v. Brown, 5 Vet. App. 458 (1993). Furthermore, even if the October 2015 private medical opinion were adequate, the Board affords greater probative weight to the diagnosis of the VA examiner. The Board finds the similarity of the February 2016 VA examination’s findings with the findings documented in the Veteran’s medical records to be compelling and persuasive, and therefore affords it significantly greater probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also acknowledges that laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, and that such opinions may support a claim of service connection. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). While the Veteran is certainly competent to report his symptoms, he is not competent to attribute these symptoms to a diagnosis of PTSD, which requires a definitive clinical diagnosis based on knowledge of psychiatric medicine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.304(f). Further, any such opinions here would be significantly outweighed by the lack of diagnosis from the Veteran’s treating clinicians and the VA examiner, who clearly hold the level of medical expertise to address the nature and etiology of the Veteran’s psychological symptoms. Therefore, the Board finds the evidence does not show that PTSD has been diagnosed in accordance with 38 C.F.R. § 4.125. In the absence of a diagnosis, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the criteria for service connection has not been met and the claim for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 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 is denied. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder other than PTSD. Establishing service connection generally requires medical, or in certain circumstances, lay evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a link between the claimed in-service disease or injury and the present disability. A review of the medical evidence of record shows that the Veteran has a current psychiatric disability as confirmed by VA treatment records, which show he has been treated for depression with anxiety. See Providence VAMC records. Likewise, the Veteran’s STRs show complaints of depression upon separation. See Medical-STRs. Further, the Veteran has alleged an in-service physical assault. See, e.g., Providence VAMC records. As such, the first two elements of service connection have been met. However, the Board finds there is no evidence of a medical nexus between the Veteran’s diagnosed psychiatric disability and his military service, including the alleged in-service physical assault. In the February 2016 VA examination, the examiner opined that the Veteran’s current depression diagnosis was less likely than not caused by or attributable to his military service. In support of the opinion, the examiner noted that the available treatment records contain conflicting reports of the Veteran’s depression dating back to childhood, to his time in the military, or to 1987. Additionally, the examiner noted that, prior to 2014, the Veteran consistently attributed his symptoms to then-current stressors, including legal issues, environmental stress, imprisonment, unemployment, homelessness, and relationship stress, as well as severe trauma experienced during his childhood in Cambodia. The examiner also noted that there is a gap in treatment from 2000 to 2007, which the Veteran is documented as saying that he did not have mental problems and did not require treatment. See February 2016 VA Initial PTSD DBQ. As discussed above, the examiner’s opinion is consistent with the Veteran’s medical records. See Providence VAMC records. The Board acknowledges that the Veteran submitted a private medical opinion, in which Dr. R.G.H. opined that the Veteran’s depression is secondary to his PTSD. See October 2015 Private Nexus Opinion. As discussed above, this opinion appears to be based on an inaccurate factual premise and therefore is inadequate for decision making purposes. See Reonal v. Brown, supra. However, even if the opinion were adequate, the Board has determined that the Veteran is not entitled to service connection for his PTSD. As such, the October 2015 private medical opinion would not support a finding of entitlement to service connection for the Veteran’s diagnosed depression with anxiety distress. The Board also acknowledges that laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, and that such opinions may support a claim of service connection. See Kahana, 24 Vet. App. at 435; Barr, 21 Vet. App. at 307. However, any such opinions here would be significantly outweighed by the opinion from the VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of the Veteran’s psychological disorders. Accordingly, the criteria for service connection has not been met and the claim for an acquired psychiatric disability other than PTSD, to include depression and anxiety, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See Ortiz v. Principi, supra; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran has asserted that he is unable to work due to his service-connected disabilities and seeks entitlement to a TDIU. Though the Veteran specifically identified his psychiatric disabilities as the basis for his claim for a TDIU, and he is not service-connected for any psychiatric disabilities, nonetheless the Veteran’s claim should be considered in light of the disabilities for which he is service connected. During the pendency of the appeal, the Veteran has been service connected for: bilateral hearing loss; lumbar radiculopathy, right lower extremity; lumbar radiculopathy, left lower extremity; tinnitus; and degenerative disk disease and intervertebral disc syndrome. A review of the claims file indicates that, with the exception of tinnitus, claims for an increased rating for each of the Veteran’s service-connected disabilities are currently pending on appeal. See October 2019 NOD. As the matter of a TDIU is inextricably intertwined with his pending claims, a remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matter is REMANDED for the following action: 1. Take all appropriate action to determine the Veteran’s current address, to include contacting his representative. 2. After completing the above and any other development deemed necessary, readjudicate the claims for increased rating and earlier effective date for: bilateral hearing loss; lumbar radiculopathy, right lower extremity; lumbar radiculopathy, left lower extremity; and degenerative disk disease and intervertebral disc syndrome. If the benefits sought on appeal are not fully granted, the Veteran and his representative should be provided with a statement of the case (SOC). If the Veteran perfects an appeal by submitting a timely VA Form 9, then those issues should be returned to the Board for further appellate consideration. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.