Citation Nr: 20006476 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-49 269 DATE: January 28, 2020 ORDER Entitlement to service connection for acquired psychiatric disorder is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for migraines is remanded. Entitlement to a disability rating in excess of 10 percent for coronary artery disease (CAD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran does not have PTSD under the appropriate DSM criteria. 2. The preponderance of the evidence is against finding that the Veteran’s current psychiatric disorders were incurred in or as a result of his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1969 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2019 hearing before the Board of Veterans’ Appeals (Board). 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that he suffers from PTSD due to his active service. In accordance with Clemons, and in order to assist the Veteran, the Board has restyled the appeal for PTSD as service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). In order to grant service connection for PTSD to a non-combat veteran or based upon a non-combat stressor, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, supra; Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). However, if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). A diagnosis of PTSD must conform to the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). 38 C.F.R. § 4.125(a). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in the upon the to the recently-updated Fifth Edition, (DSM-5). In this case, the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis for PTSD or related psychiatric conditions. The Veteran’s DD Form 214 reflects service in combat, which is conceded by the Board. In June and August 2014 statements in support of his claim for PTSD, the Veteran reported that he had been shot at by a sniper during his service in Vietnam and that a friend of his had been killed in an accident during service. The Veteran repeated these claims during his November 2019 Board hearing. The Veteran’s post-service VA and private treatment records are negative for diagnosis of PTSD or any medical opinions tying a diagnosed psychiatric condition to his time in active service. During the Veteran’s August 2014 VA examination for PTSD, the VA examiner found that the Veteran met the criteria for diagnoses for alcohol use disorder (in full, sustained remission for 14 years at the time of the examination) and unspecified personality disorder. The VA examiner found that the Veteran did not meet the criteria for a diagnosis for PTSD that conforms to the DSM-5 criteria. The examiner also opined that the Veteran’s reported stressor incidents, being shot at by a sniper in Vietnam and hearing about the death of friend in Vietnam, were inadequate to support the diagnosis of PTSD. While the Veteran reported symptoms of PTSD, the examiner found that these symptoms were most likely attributable to his personality traits and difficulty adjusting to normal life as well as his prior long-standing abuse of alcohol. The examiner opined that, in their opinion, the Veteran had not experienced any stressor sufficient to cause PTSD. In a January 2015 VA addendum opinion, the examiner opined that the Veteran personality disorder was less likely than not due to his time in service or combat stressors and more likely due to his pre-military experiences. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the August 2014 VA examination opinion and medical evidence of record. As no examiner has diagnosed the Veteran with PTSD or offered an opinion tying a diagnosed psychiatric condition to his time in active service, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for service connection for an acquired psychiatric disorder is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Veteran asserts that his current tinnitus arose during or as a result of his active service. The Veteran served in combat during service and reported being exposed to firearm, grenade, and mortar noise during service. See DD Form 214; November 2019 Board hearing. The Veteran’s service treatment records (STRs) include a September 1969 entrance medical examination with an audiometric examination with no indications of any elevated hearing thresholds. The STRs also include an April 1972 separation medical examination with an audiometric test reflecting elevated hearing thresholds at almost every frequency in both ears, with scores 5 to 15 decibels higher than the Veteran’s entrance audiometric results. During the Veteran’s August 2014 VA examination for tinnitus, the VA examiner stated that the Veteran’s hearing thresholds at entrance and separation from service were normal. Accordingly, the VA examiner found the Veteran’s tinnitus was less likely than not due to the Veteran’s in-service noise exposure. The Board notes that while the Veteran’s audiometric scores at separation do not meet the criteria to be considered a disability for VA purposes under 38 C.F.R. § 3.385, the elevated scores do indicate noise exposure during service and a decrease in hearing acuity. As the VA examiner did not take these facts into full consideration, the Board finds the August 2014 VA examination report inadequate for adjudication purposes. Accordingly, this claim must be remanded so that the Veteran can be afforded a new VA examination. 2. Entitlement to service connection for migraines is remanded. The Veteran asserts that his recurrent migraine condition is due to his active service. The Veteran post-service VA treatment records reflect that, in July 2002, he sought treatment for his headaches and stated that he had been suffering from headaches for at least 15 years. In April 2013, the Veteran’s VA treatment records reflect the Veteran reporting that he had suffered from headaches since leaving service. During his November 2019 Board hearing, the Veteran reported that his headaches began shortly after his discharge from service. The Veteran has not been afforded a VA examination for this condition. Accordingly, this claim must be reminded so that he can be afforded a VA examination on the nature and etiology of his migraine condition. 3. Entitlement to a disability rating in excess of 10 percent for coronary artery disease (CAD) is remanded. During the Veteran’s November 2019 Board hearing, the Veteran asserted that his heart condition had worsened since his last VA examination for heart conditions in September 2014. Accordingly, the Veteran must be afforded a new VA examination to ascertain the current severity of the Veteran’s service-connected heart condition. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Schedule the Veteran for a VA audiological examination to determine the nature, onset, and likely etiology of his tinnitus. The relevant documents in the record should be made available to the examiner, including a copy of this REMAND, and the examiner shall indicate in the report that the claims file was reviewed. All indicated studies should be performed. The examiner should address the following: is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus was either incurred in or otherwise related to his military service? In rendering the opinion, the examiner must consider the Veteran’s lay statements regarding his in-service noise exposure and discuss audiometric findings during service and the significance of threshold shifts on comparison of audiometric findings from the entrance and separation examination. A detailed rationale is requested for any opinion provided. 3. Schedule the Veteran for a VA headache examination to evaluate the nature and etiology of the migraine condition. The entire claims file, to include a complete copy of this REMAND, must be reviewed by the examiner. All indicated tests should be performed, and all findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that migraines are related to service. All opinions must be supported by a rationale. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his coronary artery disease. The most up-to-date Disability Benefits Questionnaire must be utilized in regard to this examination, and the claims file must be reviewed. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.