Citation Nr: 20005563 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 19-24 924 DATE: January 24, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to a compensable rating for service-connected right knee surgical scar is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had PTSD or any other acquired psychiatric disorder at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from March 2001 to May 2001, and in the United States Army from October 2001 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2018 and September 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. It is noted that the issue certified to the Board by the RO was characterized as entitlement to service connection for PTSD. Pursuant to the contentions of the Veteran’s representative in the August 2019 Appellant’s Brief, the Board has recharacterized the issue on appeal more broadly to ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) provides that, if the diagnosis of a mental disorder does not conform to the DSM-IV or is not supported by the findings on an examination report, the report must be returned to the examiner to substantiate the diagnosis. VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). A necessary element for establishing any service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran contends that he has a current psychiatric disability to include PTSD, which is related to in-service stressors that are related to his combat experiences, including watching a family burn to death inside of a car, participating in fire-fights, and observing physically violent interrogations. See June 2018 C&P Mental Disorders Examination Note. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons set forth below, the Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the June 2018 examiner acknowledged that the Veteran’s MOS was consistent with exposure to combat trauma, the examiner observed that the Veteran did not present with symptoms that were consistent with PTSD. See June 2018 C&P Mental Disorders Examination Note. The examiner observed that there is no indication that the Veteran experiences recurrent, distressing re-experiencing, avoidance, hyperarousal or mood symptoms associated with his expressed trauma. Id. The examiner considered the results of a negative PTSD screening test in October 2012, provided by VA, and noted that the Veteran’s service treatment records were silent for mental health complaints. Id. The examiner additionally explained that the Veteran does not have any mental disorder that conforms with the DSM-V criteria. VA treatment records do not contain a diagnosis of PTSD, or any psychiatric disorder. Notably, both PTSD and Depression screening tests provided to the Veteran by VA in October 2012 were negative, refuting the Veteran’s contention that he has any currently diagnosed psychiatric disorder to include PTSD. The Board also considers that during a February 2016 Operation Enduring Freedom/ Operation Iraqi Freedom Initial Screening appointment at the VA Clinic, the Veteran explained to a case manager that he had never been seen or evaluated by a mental health doctor, that he had been with his wife for eleven years, that they have three healthy children, and that the Veteran is able to manage a full-time, fast-paced job. At the time, the Veteran was asked if he had any readjustment concerns. The Veteran indicated that he was not familiar with these types of concerns, generally. After some clarification, the Veteran expressed that if these were identified by his wife, he would follow up. Following his conversation with the case manager, the case manager determined that there were no case management needs that she was able to identify at the time. Ultimately, service connection for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter (i.e., 38 C.F.R.); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.104(f). Although the Veteran suspects that he may have a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which has not established a diagnosed psychiatric disorder at this time and indicates that the Veteran does not meet the criteria for a diagnosis of any psychiatric disorder to include PTSD. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of an acquired psychiatric disorder to include PTSD, and, therefore, the Board concludes that a grant of service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for headaches is remanded. In October 2012, the Veteran underwent a social work triage assessment at a VA clinic. A TBI screening was conducted, and the Veteran’s score was positive. The Veteran competently reported that he had experienced a number of concussive events during his service, including events associated with blast or explosion IED’s (improvised explosive devices), RPG’s (rocket propelled grenades), land mines, grenades, etc. The Veteran reported that he had been involved in a vehicular accident or crash. He also reported that he suffered a blow to head (head hit by falling/flying object, head hit by another person, head hit against something, etc.) while in service. He reported that he was dazed, confused or saw stars immediately afterward. He reported developing a sensitivity to bright lights afterward. The Veteran also reported that he currently suffered from headaches. However, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches because no VA examination has yet been conducted. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is evidence of a current disability and a potential in-service cause, but there is not sufficient evidence to decide the claim. Accordingly, the Veteran should be afforded a VA examination addressing any current disabilities of the head or brain. 3. Entitlement to a higher initial rating for a right knee surgical scar is denied. The Veteran originally filed a claim for service connection for a surgical scar in February 2018. Service connection was granted by the RO in a July 2018 rating decision, with an evaluation of zero percent, effective February 28, 2018. The Veteran timely perfected his appeal to the Board and requested a higher evaluation. In July 2019, the Veteran submitted an Independent VA Rating Evaluation, from G.U., which considered his competent lay statement, describing his scar as painful. The Veteran underwent a VA examination for his scar in August 2019. Following this examination, a September 2019 rating decision assigned a separate 10 percent rating for the Veteran’s service-connected surgical scar of the right knee from July 31, 2019. As such, the record reflected two current separate rating for the surgical scar of the right knee; one, a noncompensable rating from February 28, 2018 under Diagnostic Code 7805, and the second, a 10 percent rating from July 31, 2019 under Diagnostic Code 7804. See the rating decision dated September 2019. Moreover, the RO failed to subsequently readjudicate the matter of entitlement to a higher initial rating for service-connected right knee surgical scar after the issuance of the September 2019 rating decision. Moreover, the August 2019 VA examination was associated with the claims file subsequent to the July 2019 SOC. The Veteran has not waived AOJ review of the additional VA-generated evidence. The law requires that, without a written waiver of initial RO review, the Board must remand this matter for the RO to readjudicate the Veteran’s initial rating claim to include initial consideration of the August 2019 VA examination as it pertains to the pending claim. 38 C.F.R. § 20.1304(c). The matter is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disability. The record must be made available to, and reviewed by the examiner, and the examiner should take a history from the Veteran as to the progression of his disability. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, to include the Veteran’s lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following questions: a. Please clarify all current headache disabilities. b. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s headache disability had onset in, or is otherwise related to his period of active duty service? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the issues on appeal to include clarifying the assigned rating for the service-connected surgical scar of the right knee. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. Katherine K. Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.