Citation Nr: 20005397 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-42 839 DATE: January 23, 2020 ORDER The claim of entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. is denied. FINDINGS OF FACT 1. Although assessments of PTSD and PTSD symptoms have been noted, competent, probative evidence does not establish that the diagnostic criteria for PTSD are met, to include identification of a verified or verifiable in-service stressor to support the diagnosis. 2. Although the record reflects diagnoses of adjustment disorder, depression, paranoid schizophrenia, and cognitive disorder, there is no evidence or argument that any such acquired psychiatric disorder had its onset during service or that a psychosis was manifest within the one-year period following separation from service, and there is no competent, probative, evidence that there exists an etiological relationship between any such current disorder and the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1972 to March 1974. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2011 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado denied entitlement to service connection for posttraumatic stress disorder (PTSD) and depression. In July 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2012 and resent in October 2015, and in November 2015, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) with respect to the psychiatric claim. In October 2018, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Although the Veteran has claimed service connection for PTSD, specifically, and the AOJ has considered both PTSD and depression, as the record reflects other psychiatric diagnoses, to include adjustment disorder, paranoid schizophrenia, and cognitive disorder, his claim has been expanded to encompass any acquired psychiatric disorder, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110, 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Determinations as to whether the elements of a claim are met are based on an analysis of all the evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125. Certain chronic diseases, including psychoses manifest within one year of separation from service, shall be presumed to have been incurred in service if manifested to a compensable degree within the prescribed post-service period, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering pertinent evidence of record in light of the above, the Board finds that service connection for an acquired psychiatric disability, to include PTSD, is not warranted. A review of the Veteran’s service treatment reports (STRs) reveals that psychiatric evaluations were normal at the June 1972 entrance examination and the February 1974 separation examination. The records do not reveal any complaints, findings, or treatment for any psychiatric symptoms. Post service, the first documented evidence of psychiatric symptoms was in October 2010, at which time a VA PTSD screen was positive. The Veteran reported symptoms of PTSD related to torture and beatings of a fellow Marine in service. He was assessed with rule/out PTSD in October 2010. In November 2010, a PTSD screen was negative, but the Veteran was assessed with adjustment disorder and “other psychiatric disorder.” He reported nervousness and a history of panic attacks with PTSD in January 2011. He was assessed with anxiety and PTSD. In March 2011, a PTSD screen was positive. In June 2011, November 2011, and April 2012, the Veteran was assessed with cognitive disorder, not otherwise specified, rule out anxiety, and rule out psychotic disorder. In August 2012, the Veteran was assessed with depression, PTSD, and anxiety. In January 2012, a VA clinician indicated that the Veteran had cognitive disorder, or not and could have had an adjustment reaction. In July 2013, a VA clinician indicated that the Veteran reported that he received a diagnosis of PTSD by Social Security; however, there was no treatment history in the VA remote data suggestive of PTSD. The clinician noted that the Veteran was vague in his responses and it was hard to clarify PTSD symptoms. In August 2013, he was assessed with a questionable history of psychosis. The records which reference PTSD diagnoses did not discuss how the Veteran met the specific diagnostic criteria for PTSD, consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). See 38 C.F.R. § 4.125. Records from the Social Security Administration (SSA) include the report of a private February 2011 mental status examination conducted by S. Kutz, Ph.D. The Veteran reported a history of “negative experiences” in the Marines, and indicated that he had dreams of his drill instructor trying to chase and kill him. The Veteran was assessed with paranoid type schizophrenia, history of polysubstance abuse, and PTSD. Dr. Kutz did not describe how the Veteran met the specific diagnostic criteria for PTSD, consistent with the DSM. See 38 C.F.R. § 4.125. The Veteran submitted a VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault in September 2011. He reported that while in boot camp, he was beaten and had to guard a fellow service member while his sergeant tortured and beat the other person. In December 2011, the RO issued a memorandum and indicating that information required to verify the in-service stressful events described by the Veteran was insufficient to send to the Joint Services Records and Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration records. The Veteran testified that he was “King Rat” during boot camp and whenever someone did something wrong the King Rat got beaten up and then the King Rat beat up the squad leaders and the guard. He reported that his drill instructor served in Vietnam and had a problem with Asian people and tortured people of Asian descent. He testified that he had to guard an Asian service member while he was being tortured. He noted that the King Rat was the enforcer who beat everyone up. While the record reflects assessments and symptoms indicative of PTSD, competent, probative evidence does not establish that the DSM diagnostic criteria for PTSD are met, to include a verified or verifiable stressor to support such a diagnosis. The record also documents other variously diagnosed acquired psychiatric disabilities, including adjustment disorder, depression, paranoid schizophrenia, and cognitive disorder. However, there is no competent evidence supporting a finding that any such psychiatric disorder had its onset during service, or is otherwise medically-related to an in-service injury, disease, or event. As noted, STRs document no complaint, finding, or diagnosis of a psychiatric nature, which indicates no in-service disease. Also, as indicated above, there are is no established in-serve injury—to include the Veteran’s report of being beaten and having to beat other service members during boot camp, which is not supported in the record, and which the AOJ correctly determined could not be corroborated. Moreover, there is no competent, credible evidence of any psychiatric problems for years after service, until October 2010, at which time the Veteran reported symptoms of what he then described as PTSD. Furthermore, there is mention of any possible psychosis until 2011, well-beyond the one-year presumptive period for establishing service connection for a psychosis on a presumptive basis. Also, while the Board recognizes that PTSD is typically a disability of delayed onset, with respect to other psychiatric diagnoses of record, the fact that the post-service record does not document any psychiatric problems for many years after service is a factor that tends to weigh against an award of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, there is no competent, probative, evidence that there exists an etiological relationship between any current acquired psychiatric disorder and the Veteran’s active service. During his multiple VA examinations, no clinicians did not attribute a diagnosed acquired psychiatric disorder to his active service. Still further, the Board specifically notes that at no time during his VA psychiatric consultations or during his private psychological evaluation did any clinician specifically link any psychiatric symptomatology to the Veteran’s reported stressors during boot camp. In sum, no VA clinician has attributed any diagnosed psychiatric disorder or symptoms specifically to his military service, and there is no other competent or credible evidence attributing his diagnosed psychiatric disorders to reported in-service stressors. Thus, there is no competent, probative medical evidence that any properly diagnosed psychiatric disorder is medically-related to service, and on this record, VA is not required to obtain a VA examination or opinion to specifically determine whether such a nexus exists. Generally, VA has a duty to provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, however, the VA psychiatric reports of record clearly establish a timeline of the onset of the Veteran’s psychiatric symptoms and do not attribute ant diagnosed psychiatric disorder to any established in-service event. Thus, there is no competent, credible, and probative evidence of a specific service injury or disease to which a current diagnosis may be related. This is so even considering the low nexus standards to trigger VA’s duty to provide an examination and/or obtain a medical opinion. In summary, the McLendon threshold elements must be satisfied before VA is obliged to provide an examination or opinion and in this particular case, they are not met. The Board also has considered the Veteran’s own assertions, but finds that such assertions generally do not provide persuasive support for the claim. While the Veteran has asserted his belief that he has service-related PTSD, he is not competent to provide such a diagnosis. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify); Clemons, 23 Vet. App. at 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). Moreover, as explained above, in this case, competent, probative medical evidence does not establish that the Veteran has actually met the DSM criteria for a valid PTSD diagnosis. Furthermore, as for the Veteran’s own assertions that there exists a medical nexus between a current psychiatric disorder and service, the Board points out that the matters of diagnosis and medical etiology of psychiatric disability here at issue are ones within the province of trained mental health professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the matters upon which this claim turns involve complex medical matters that fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that a lay person may be competent to attest to a broken leg, but not to diagnose cancer). As the Veteran is not shown to be other than a layperson without appropriate training and expertise, he simply is not competent to render a probative (i.e., persuasive) opinion as to either psychiatric diagnosis or etiology. Hence, he can neither support the claim, nor counter the probative evidence of record, on the basis of any such lay assertions. For all the foregoing reasons, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD and depression, must be denied. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.