Citation Nr: 20021966 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-19 807A DATE: March 30, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is denied. REMANDED Entitlement to the assignment of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) based on the fourth or fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that an acquired psychiatric disorder, other than PTSD, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1970 to January 1972. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for PTSD, an acquired psychiatric disorder other than PTSD, and the assignment of TDIU. In March 2012, the Veteran submitted a timely Notice of Disagreement (NOD) with the August 2011 rating decision. In May 2014, the RO issued a Statement of the Case (SOC). In June 2014, the Veteran filed a timely VA Form 9 appeal to the Board. In February 2018, the Board remanded the case for further development and adjudicative action. As an initial matter, regarding the issue of entitlement to the assignment of a TDIU, the Veteran is currently in receipt of a 100 percent disability rating for service-connected prostate cancer. In a March 2019 rating decision, the RO proposed to decrease the 100 percent rating for prostate cancer to 20 percent. However, the 100 percent rating is still currently in effect. Therefore, because the issue of entitlement to a TDIU is inextricably intertwined with the proposal to decrease the Veteran’s disability rating for prostate cancer, the Board must defer adjudication of the TDIU issue until the action for proposed reduction is resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran asserts that he has PTSD, or another psychiatric disability, to include depression, anxiety, and dysthymic disorder, that was caused by or is related to his active military service. Specifically, he contends that he developed PTSD due to his fear of hostile military forces during his Vietnam War service. The Board concludes that the Veteran does not have a current diagnosis of PTSD that is related to service and the Veteran’s diagnosed psychiatric disorders, to include depression, anxiety, and dysthymic disorder, are not related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain identified chronic diseases, to include psychoses, may be established on a presumptive basis by showing that such a disease manifested to a compensable degree within a prescribed period following separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Psychoses include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), other specified schizophrenia spectrum or other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance-induced psychotic disorder; but not PTSD, depressive, anxiety of panic disorders. 38 C.F.R. §§ 3.384. The requirements for establishing a diagnosis of PTSD are codified in 38 C.F.R. § 3.304(f) and differ from those for establishing service connection generally. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). During the pendency of the Veteran’s appeal, the VA amended the applicable regulations to transition to the use of the DSM-5. See 80 Fed. Reg. 14308 (March 19, 2015). Of record are PTSD evaluations under both the DSM-IV and DSM-5. However, as noted below, the Veteran does not meet the necessary criteria for a diagnosis of PTSD under either the DSM-IV or DSM-5. Regarding his pre-military history, the Veteran has variously reported childhood emotional trauma and a “good” childhood. Compare November 2010 VA examination report, with January 2019 VA examination report. However, during the November 2010 VA examination, the VA examiner noted that the Veteran became “teary-eyed” when talking about traumatic childhood events. The Veteran has reported several in-service stressors to support his claim for PTSD. First, the Veteran has stated that his base came under attack “regularly” by enemy forces during his year of Vietnam service. See C.F., mental health progress note dated April 28, 2016. For unknown reasons, the Veteran was not allowed to carry a service weapon. See January 2019 VA examination report. He reports running for the weapons cache in fear for means of defending himself during enemy attacks, although he himself was never involved in direct combat with the enemy. See November 2010 VA examination report. Second, while making supply trips down a coastal road in Vietnam, the Veteran reports seeing dead and injured along the roadside and hearing gun and mortar fire in the distance. At times during VA treatment, the Veteran seems to have reported that he took direct fire while on supply missions. See July 2011 VA examination report. Nevertheless, he has also reported that he was not involved in direct combat. See, e.g. Dr. S., mental health treatment note dated February 11, 2010. However, he claims that a soldier who replaced him for one supply trip was shot in the neck during an enemy ambush of the supply convoy. See Veteran statement dated June 18, 2014. The Veteran reports missing the trip solely due to illness and remembers the name and rank of the soldier who replaced him. See Veteran statement dated February 7, 2012. The Veteran also reports anxiety due to the exoticness of Vietnam and its people, as well as due to the disorganized state of his company and stress from his military duties. See id. In interviews with VA treatment providers, the Veteran has identified a potential post-service stressor. Eight days after discharge from the military, the Veteran witnessed firsthand the shooting of a friend “point blank” during a drug deal. Dr. S., mental health treatment note dated February 11, 2010. The Veteran was sitting in the passenger seat of the car in which his friend, sitting in the driver’s seat, was shot. The Veteran reports going into hiding for months out of fear of being targeted by the assailants. See id. The Veteran also endorses in- and post-service substance abuse, but that he last used in 1976. See July 2011 VA examination report. The Veteran reports that he considered seeking VA mental health treatment shortly after service, and even drove to a VA hospital parking lot only to leave without entering the building. See Veteran statement dated February 7, 2012. However, out of fear of being stigmatized as “crazy,” he did not seek treatment. Veteran statement dated February 25, 2011. Nevertheless, the Veteran reports symptoms of depression, anxiety, mood swings, hypervigilance, and nightmares about Vietnam continuing since service. See Veteran statement dated February 25, 2011. Regarding the nightmares, the Veteran has also stated that he has no memory of their content. See January 2012 VA examination report. As an example of the hypervigilance, the Veteran recalls attempting to choke his eleven-year old sister after she surprised him with a firecracker in his room. This event occurred after the post-service shooting of the Veteran’s friend. See Dr. S., mental health treatment note dated February 11, 2010. The Veteran also began to carry a weapon and developed a habit of sitting with his back against the wall after the shooting. See id. The Veteran, who was a pastor for over thirty years, first sought VA mental health treatment in 2010 after a series of personal and professional setbacks, which include failed marriages and interfamilial conflict, the failure of his parochial school, an IRS action for back taxes against him, and bankruptcy. See Veteran statement dated February 7, 2012; see also July 2011 VA examination report. Regarding the Veteran’s pre-service history, his statements about pre-service emotional trauma are more credible than the later statements denying trauma, given the Veteran’s strong emotional reaction to discussing the events during the November 2010 VA examination. See Caluza v. Brown, 7 Vet. App. 498 (1995). Regarding the Veteran’s statements about the in-service stressors, the record is unclear as to whether the Veteran took direct fire. Nevertheless, his DD Form 214 gives his military occupational specialty (MOS) as unit supply specialist and lists one year of Vietnam service. The Veteran’s decorations include the Vietnam Service Medal and the Bronze Star. Accordingly, absent strong evidence to the contrary, the Veteran’s statements about his service, including as to his claimed stressors, are credible. See id. Furthermore, the Veteran may be entitled to the combat presumption for PTSD stressors under 38 C.F.R. § 3.304(f)(2) and (f)(3). Under 38 C.F.R. § 3.304(f)(2), if the evidence shows that the veteran engaged in combat with the enemy and the claimed PTSD stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, then, absent clear and convincing evidence to the contrary, the veteran’s lay testimony alone may establish an in-service stressor. Moreover, under 38 C.F.R. § 3.304(f)(3), the veteran may establish a PTSD stressor related to the veteran’s fear of hostile military or terrorist activity through lay evidence if a VA psychiatrist or psychologist confirms that the stressor is adequate to support a PTSD diagnosis. Based on the Veteran’s lay statements about the supply convoy trips, the July 2011 VA examiner concluded that the Veteran’s fear of hostile military activity was an adequate stressor to support a PTSD diagnosis under the DSM-IV. See July 2011 VA examination report. Therefore, the Veteran is entitled to the 38 C.F.R. § 3.304(f)(3) presumption for this claimed stressor. Moreover, the Veteran is competent to testify as to his psychiatric symptomatology since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he is not competent to diagnose or label his symptoms as PTSD or another psychiatric disability, nor is he competent to state a nexus between any psychiatric disability and his military service. See id. Accordingly, medical evidence is necessary to establish both diagnosis of a psychiatric disability and a nexus between any psychiatric disability and service. The Veteran has received VA examinations for his acquired psychiatric disorder in November 2010, July 2011, January 2012, and January 2019. The January 2019 VA examiner submitted an addendum opinion in October 2019. The November 2010 VA examiner diagnosed the Veteran with “anxiety disorder NOS w/ some PTSD features,” “major depressive disorder, recurrent, in partial remission,” and “dysthymic disorder, early onset,” but that the Veteran did not meet the full diagnostic criteria for PTSD. The VA examiner opined that the anxiety disorder was “partially attributable to the stressful incidents the Veteran experienced in Vietnam,” but that there were “post-military stressors that are also casual factors in anxiety disorder NOS.” Because of the multiple causes of the Veteran’s psychiatric symptoms, the VA examiner concluded that it would be impossible to determine “causality related to military experiences alone without resorting to mere speculation,” due to “the impossibility of objectively establishing a baseline of functioning without the influence of post-military stressors.” The VA examiner founded the diagnosis of early-onset dysthymic disorder solely on the Veteran’s reported troubled childhood. The July 2011 VA examiner diagnosed the Veteran with “major depression, recurrent, moderate, in partial remission,” but not PTSD. He also did not opine on the nexus between the Veteran’s psychiatric disabilities and his military service because of “the Veteran’s developmental history, lack of objective treatment for any of these conditions in service or shortly afterwards, and the Veteran’s post service life events/trauma/IRS issues.” However, he did conclude that the Veteran had an adequate PTSD stressor under the DSM-IV based on fear of hostile military or terrorist activity, relating to once-a-month supply convoy trips during which the Veteran observed dead bodies and “occasionally” came under fire. The January 2012 VA examiner diagnosed the Veteran with depressive disorder NOS and opined that the depression was less likely than not related to or caused by military service. Regarding PTSD, the VA examiner concluded that the Veteran did not meet the full DSM-IV diagnostic criteria for PTSD. The VA examiner reasoned that the Veteran’s responses to open-ended questioning and interview were not consistent with PTSD and more consistent with depression. Moreover, she found that the Veteran “has multiple current stressors and life changes,” including the IRS action, childhood trauma, marriage troubles, and drug addiction “historically that seem to be the major issues in his presentation.” As discussed, before the January 2019 VA examination, the Board remanded the case. The February 2018 Board remand directives instructed the RO to consider whether the Veteran’s psychiatric disabilities clearly and unmistakably preexisted service, due to the November 2010, July 2011, and January 2012 VA examiners’ suggestions that the Veteran’s childhood trauma may have resulted in a pre-service psychiatric disability. No psychiatric disability was noted upon the Veteran’s entrance into service. Therefore, he is presumed sound at entry with respect to any psychiatric diagnosis. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that a psychiatric disability existed prior to service and clear and unmistakable evidence that the disability was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In general, lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Although the presumption of soundness cannot be overcome simply based on the representations of the Veteran during the entrance examination or thereafter such statements are considered with all other material evidence in deciding as to inception. See 38 C.F.R. § 3.304; see also Miller v. West, 11 Vet. App. 345 (1998). If VA is unable to rebut the presumption of soundness, then the claim becomes one for service connection based upon incurrence of disability in service. Regarding the presumption of soundness, the January 2019 VA examiner opined that the Veteran did not have a psychiatric disability that clearly and unmistakably preexisted service. She reasoned that the Veteran did not receive formal mental health treatment prior to service, or indeed prior to 2010, and that there was no evidence of a pre-service mental health diagnosis. Therefore, and as the only source of evidence supporting the existence of a pre-service psychiatric disability is lay testimony from the Veteran, VA has not rebutted the presumption of soundness regarding the Veteran’s psychiatric diagnoses. Accordingly, the analysis proceeds to service connection based upon in-service incurrence of a psychiatric disability. Regarding the psychiatric disabilities, the VA examiner diagnosed the Veteran with “unspecified depressive disorder with anxious distress.” However, although conceding the existence of a military stressor, she opined that the Veteran did not meet the DSM-5 criteria for PTSD. In the January 2019 VA opinion, the VA examiner concluded that, given the multitude of causes, she could not evaluate “the relative contribution of [the Veteran’s military] stressors to current diagnosis and overall impairment,” because of the “multiple other intervening stressors” and lack of evidence of in-service treatment or diagnosis of a psychiatric disability. She also concluded that the Veteran-witnessed shooting of his friend would be an adequate stressor under the DSM-5. In the October 2019 addendum, the VA examiner opined that it “appears less likely that the Veteran’s current depressive disorder was directly caused by military service,” based on upon the evidence considered during the January 2019 VA examination. When evaluating the probative value of medical opinions, the Board considers the following factors: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Regarding the November 2010 VA examination, the VA examiner partially attributed the Veteran’s Vietnam service to his current psychiatric disabilities but did not provide a fully articulated opinion as to the nexus between service and the psychiatric disabilities. Nevertheless, the partial causation regarding the Veteran’s Vietnam service is noted and afforded some probative value. Regarding the July 2011 VA examination, the VA examiner again did not provide an articulable opinion on the nexus between the Veteran’s service and his current psychiatric disabilities due to the multitude of potential post-military causes. However, the VA examiner’s conclusion that the Veteran had a stressor sufficient to support a diagnosis of PTSD is afforded some probative value. Regarding the January 2012 VA examination, the VA examiner’s conclusion that the Veteran did not meet the DSM-IV diagnostic criteria for PTSD is supported by a reasoned analysis based on the Veteran’s statements during the examination. Furthermore, the VA examiner provided a fully articulated opinion as to the lack of a nexus between the diagnosed depression and service and provided a rationale to support the opinion based on review of the claims file and Veteran’s testimony. Accordingly, the January 2012 VA opinion is afforded significant probative value as to nexus. Regarding the January 2019 VA examination and October 2019 addendum, the VA examiner provided a partially articulated opinion regarding the nexus between the Veteran’s psychiatric disabilities and service, though, like the other VA examiners, cautioned against speculatively attributing the psychiatric disabilities to service above all other potential causes. Nevertheless, the opinion is supported by an adequate rationale, review of the claims file, and the Veteran’s statements. Accordingly, the January 2019 VA opinion is afforded some probative value as to nexus. Furthermore, there are numerous working diagnoses and impressions of PTSD within the record. However, none of these provisional PTSD diagnoses are accompanied by an analysis of or opinion on the etiology of the PTSD or of any other psychiatric disability. Accordingly, more weight on nexus is given to the VA examinations of record. Lastly, although the Veteran sincerely believes that his psychiatric disabilities are related to service, his opinion in that regard is not competent. The Veteran is certainly competent to report observable symptoms (such as pain, for example) and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1372. In addition, lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of any acquired psychiatric disability falls outside the realm of common knowledge of a lay person, particularly in light of the lengthy time period between service and the Veteran’s initial psychiatric treatment. See Jandreau, 492 F.3d at 1377 n.4. The disease involves a complex internal process as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. Accordingly, the preponderance of the evidence shows that the Veteran does not have a psychiatric disability, to include PTSD, depression, anxiety, and dysthymic disorder, that began during service or is otherwise related to service. Because the weight of the evidence is against a competent and probative medical nexus between the Veteran’s psychiatric disabilities and service, the preponderance of the evidence is against an essential element of the claim. The benefit of the doubt doctrine is therefore inapplicable and entitlement to service connection for an acquired psychiatric disability, to include PTSD, is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to the assignment of a TDIU. As noted in the introduction above, the issue of entitlement to a TDIU is inextricably intertwined with the proposal to decrease the Veteran’s disability rating for prostate cancer. Accordingly, the Board must defer adjudication of the TDIU issue until the action for proposed reduction has been adjudicated. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Following promulgation of a rating decision in the proposed action to reduce the Veteran’s rating for prostate cancer, readjudicate the issue of entitlement to a TDIU, and, if necessary, return the case to the Board. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Law Clerk 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.