Citation Nr: 20021564 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-62 498A DATE: March 26, 2020 ORDER Service connection for claimed posttraumatic stress disorder (PTSD) is denied. Service connection for claimed anxiety disorder is denied. REMANDED An initial disability rating higher than 10 percent for the service-connected right knee patellar pain syndrome (right knee disability) is remanded. FINDINGS OF FACT 1. There was no psychiatric injury or disease during service. 2. There is no currently diagnosed psychiatric disability, including claimed PTSD or anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for claimed PTSD are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for claimed anxiety disorder are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from November 1997 to November 1999. This matter is on appeal from an August 2015 rating decision. In this case, the Board finds that the duties to notify and assist have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a),(d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because there is no current psychiatric diagnosis, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) are not applicable. Effective August 4, 2014, VA revised the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The revised provisions apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. The provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. In this case, the appeal was certified to the Board in June 2019, so the revised regulations are applicable. 1. Service Connection Analysis for Claimed PTSD 2. Service Connection Analysis for Claimed Anxiety Disorder The Veteran contends that he has a current psychiatric disability, claimed as PTSD and anxiety disorder, related to service. He asserts that the in-service complaints of dizziness, anxiety, fainting, chest pain, heart palpitations, and panic attacks were manifestations of a psychiatric disability and have continued since service although he did not seek treatment for many years after service because of a lack of insurance and money. He further asserts that service physicians knew that he had anxiety during service and treated the psychiatric symptoms by having the Veteran take time off from work and reducing stress. The Veteran has identified no stressor events during service which may have led to a current psychiatric disability, and none are shown. The Veteran does not contend that he had combat service or fear of terrorist or hostile military activity. The Veteran served with a primary military occupational specialty of antitank assault guided missileman; however, service personnel records show no receipt of military citations indicative of combat service, and the Veteran had no foreign service. For these reasons, the Board finds that the Veteran did not engage in combat with the enemy during service and did not fear terrorist or hostile military activity; therefore, the presumptions afforded to those veterans are inapplicable in this case. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran currently has or has ever had a psychiatric diagnosis, including PTSD or anxiety disorder. The service treatment records show that, in April 1998, the Veteran was evaluated for symptoms of dizziness of three to four weeks duration and chest pain at rest; however, he then denied hyperventilation and stress and stated that he felt panic only when he was afraid that he may fall over from dizziness. After treatment with meclizine for four days, the Veteran experienced relief and became asymptomatic. The Veteran specifically denied having panic attacks or stress, stated that he desired to be in the Marine Corps, and enjoyed his current military occupational specialty. The service medical provider diagnosed probable peripheral vertigo. In May 1998, the Veteran reported for a follow-up evaluation and stated that he no longer had symptoms and felt normal. The service medical provider noted that the Holter monitor results were normal with no cardiac abnormality and diagnosed resolved benign positional vertigo. At the February 1999 service separation examination, the psychiatric system was clinically evaluated as normal. At the February 1999 service report of medical history, the Veteran checked “no” when asked if he then had or had ever had frequent trouble sleeping, depression or excessive worry, nervous trouble of any sort, shortness of breath, or heart palpitations. Although the Veteran has asserted he was treated for an in-service psychiatric disability manifested by dizziness, anxiety, fainting, chest pain, heart palpitations, and panic attacks during service, the account is inconsistent with, and outweighed by the evidence generated contemporaneous to service showing no psychiatric symptoms, diagnosis, or treatment. While there was treatment for dizziness, fainting, and chest pain, the Veteran specifically denied having any stress or panic attacks during treatment. Statements made for treatment purposes are particularly trustworthy because an individual has an incentive to report accurately the history of symptoms to receive proper care. The Veteran was also provided the opportunity to report any psychiatric symptoms at service separation, and specifically denied having any depression or anxiety at that time. The psychiatric system was also clinically evaluated and determined to be normal. For these reasons, the Board finds that a psychiatric disability would have ordinarily been recorded during service if it had been present, especially in this Veteran's case when he reported some symptoms like dizziness and chest pain and specifically denied having stress or panic attacks. In this case, the lay and medical evidence generated contemporaneous to service, which shows no psychiatric symptoms, injury, or disease during service, is likely to reflect accurately the Veteran's psychiatric condition, so is of significant probative value and provides evidence against a finding of psychiatric disability during service. The post-service treatment records included in the record are absent of any diagnosis or treatment for a psychiatric disability. The Veteran has neither presented nor identified any evidence showing that he has been diagnosed with or treated for a psychiatric disability. Although the Veteran, as a lay person, is competent to report any psychiatric symptoms he has experienced, he is not competent to diagnose a psychiatric disability because making a psychiatric diagnosis requires medical expertise and falls outside the realm of common knowledge of a lay person. See generally Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"). The DSM-5 cautions that it was "not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis." Rather, clinical training is required "to recognize when the combination of predisposing, precipitating, perpetuating, and protective factors has resulted in a psychopathological condition in which physical signs and symptoms exceed normal ranges.” The "purpose of DSM-5 is to assist trained clinicians in the diagnosis" of various mental disorders. The evidence of record that no past or current psychiatric symptoms, diagnosis, or treatment. Consequently, the Veteran's purported opinion that he has a psychiatric disability related to service is of no probative value. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of evidence of a present disability at any time during or immediately prior to this claim, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative; however, where, as here, the overall evidence of record overwhelmingly fails to support a psychiatric diagnosis, that holding is of no advantage. As the weight of the evidence demonstrates that the Veteran does not have a psychiatric disability, the preponderance of the evidence is against the appeals for service connection for claimed PTSD and claimed anxiety disorder, so the appealed issues must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Initial Rating for Right Knee Disability During the appeal, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. Because the May 2015 VA examination performed in connection with the appeal showed painful right knee flexion and right knee pain with weight-bearing, but did not include the results of range of motion testing for pain on both active and passive motion or specify the point at which pain began, the Board will remand for further VA examination of the right knee. The issue of initial rating for right knee disability is REMANDED for the following actions: 1. Schedule an examination of the right knee to help determine the current severity of the service-connected right knee disability. The examiner should test the range of motion for pain in active motion, passive motion, weight-bearing, and non-weight-bearing, for any joints affected by the right knee disability. The examiner should comment on the degree at which pain begins during range of motion testing, the extent of any incoordination, weakened movement, and fatigability on use due to pain must also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination as well as on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 2. Thereafter, readjudicate the right knee rating issue on appeal. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.