Citation Nr: 20028186 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 16-61 947 DATE: April 22, 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 erectile dysfunction is remanded. Entitlement to service connection for a right leg problem associated with diabetes mellitus type 2 is remanded. Entitlement to service connection for diabetes mellitus type 2 is remanded. Entitlement to service connection for fourth toe on left foot amputation associated with diabetes mellitus type 2 is remanded. Entitlement to service connection for ulcer on right foot associated with diabetes mellitus type 2 is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy as due to diabetes mellitus type 2 is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity as due to diabetes mellitus type 2 is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity as due to diabetes mellitus type 2 is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity as due to diabetes mellitus type 2 is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current acquired psychiatric disorder to include claimed PTSD, began during active service, or is otherwise related to an in-service injury or disease. 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1970 to December 1972, and then again from October 1975 to September 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 Caselaw Positive (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or appellant or obtained on his or her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran asserts that he is entitled to service connection for PTSD. Initially, the Board notes that this matter was last before the Board in November 2019, at which time this matter was recharacterized from service connection for PTSD to service connection for an acquired psychiatric disorder. See, Clemons v. Shinseki, 23 Vet. App. 1(2009). Further, this matter was remanded for an addendum opinion. The Board finds that there has been substantial compliance with the remand directives and a further remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 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). In claims of service connection for PTSD, to meet the requirements for service connection, the record must show: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor occurred in service; and (3) medical evidence of a causal nexus or link between current symptomatology and the specific claimed in-service stressor. See, Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304 (f). The question for the Board is whether the Veteran has a current acquired psychiatric disorder, to include PTSD, that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a diagnosis of PTSD. The Board further concludes that, while the Veteran has a current diagnosis of unspecified depressive order, and evidence shows that the Veteran was treated for depression in service, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of unspecified depressive disorder began during service or is otherwise related to an in-service injury, event, or disease. A January 2, 1978 service treatment record notes the Veteran reported being divorced the prior week after a year of separation. He reported difficulty sleeping and grieving. Substantial depression was diagnosed, and it was noted that he had been seen by a psychologist and "various chaplains". An October 5, 1978 service treatment record notes the Veteran reported having "a lot of tension." No history of (then) recent trauma was noted. No numbness or tingling was also noted. A May 21, 1979 service treatment record notes the Veteran was "under severe mental pressure [secondary] to divorce and dissolution of [his] family." A July 24, 1979 service treatment record notes the Veteran's ongoing upper back and shoulder pain were a psychosomatic manifestation after the Veteran related having "considerable problems in his present work center with his chief and other co-workers." A change of station was endorsed. A November 19, 1979 service treatment record notes the Veteran was "having any emotional pressures at work" and was involved in an investigation. Somatic dysfunction secondary to anxiety and depression was noted. A November 27, 1979 service treatment record notes the Veteran reported having a hard time accepting his divorce as he still loves his wife and children. Unhappiness, pessimism, hopelessness, insomnia, fatigue and impaired concentration were noted. Depression was diagnosed. A November 29, 1979 service treatment record notes the Veteran reported having a hard time accepting his divorce and symptoms of impaired sleep, decreased appetite, weight loss, decreased concentration, temper outbursts, easily excited tension headaches, moodiness and loneliness were noted. It was further noted that he was raised in "a conflict-ridden family" and that his parents divorced at age 9. Reactive depression was diagnosed. A May 5, 1980 service treatment record noted the Veteran’s muscular problems were possibly stress related. It was then noted that the Veteran's marital discord was continuing despite his being divorced for 2 years. Depression was noted and counselling was recommended. A May 6, 1980 service treatment record notes the Veteran received counselling regarding "esteem", "psychological self flagellation" and "positive decision making." It was noted that the Veteran admitted that "he is making himself miserable in his dealings [with] his environment." A June 23, 1980 service treatment record notes the Veteran reported being "under a lot of pressure at work and home" and has "a lot of tension and stress." A June 24, 1980 service treatment record notes the Veteran was depressed with "suicide tendency". It was then noted that the Veteran was unable to cope with his marriage situation and presented to the emergency room because he felt like taking pills for suicide", though it was also noted that the Veteran was not currently suicidal. A June 24, 1980 service treatment record notes the Veteran was tearful, angry and wanting someone to call his ex-wife as he wanted to get back together with her. It was noted that the Veteran had "no insight into [his] present condition." Immature personality disorder was noted. A June 4, 2014 VA psychology consult treatment record notes the Veteran has diagnoses of anxiety disorder, depressive disorder and a history of substance dependence in long-term remission. The Veteran reported having nightmares from having photographed bombing destruction in Vietnam, "including thousands of dismembered bodies of Americans and the VietCong." He further reported being "fearful when he rode in F-15's that were shot at by enemy planes." In an August 2014 letter, the Veteran stated that "as a Navy intelligence photographer" he "served boots on the ground in Vietnam." He then asserted having PTSD "from [his] combat experiences". In a February 2015 statement in support of claim for PTSD, the Veteran stated that while stationed on the USS Saratoga from March 1974 to March 1978 he "flew mission[s] ...over Vietnam, Lebanon, Iran, Iraq and the Black Sea of Russia." He then stated that while taking photographs in Vietnam he was being shot at. He further stated that he photographed bombs, dead bodies and "blown up equipment while flying over and on the ground of Vietnam." He then stated that taking off and landing on the aircraft carrier caused him to have "extreme anxiety during [his] 4 years on board." In a September 2015 letter to President Obama, the Veteran stated that he served in the "Combat Camera Outfit of Special Operations" and that when he was first assigned to the photo lab of the USS Saratoga he was met with a racial slur. The Veteran was afforded a VA PTSD examination in July 2016. It was noted that the Veteran has neither PTSD nor a mental disorder that conforms with DSM-5 criteria. The Veteran endorsed having combat experience in the Mediterranean Sea, though could not give specific dates. The Veteran denied suicidal or homicidal ideation. It was noted that no response was provided for PTSD criteria B through I. The Veteran reported being angry due to systemic racism and suffering discrimination ever since joining the military. The examiner stated that after reviewing the e-folder and electronic medical charts, and conducting a diagnostic psychiatric examination, the Veteran does not meet diagnostic criteria for depression or for a mental health condition at this time. In November 2019, VA obtained an addendum to the July 2016 VA examination. The examiner stated that at the time of the 2016 VA examination, the Veteran did not meet diagnostic criteria for a mental health diagnosis per DSM-5 and stated that there were no mental health issues related to his service as a photographer in the military. However, the examiner then stated that after reviewing the record it would be in the Veteran's best interest to have another examination "with another provider" to look into a possible depression diagnosis. The Veteran was afforded a VA mental disorders examination in January 2020. A diagnosis of unspecified depressive disorder was noted. The examiner opined that the Veteran's unspecified depressive disorder is less likely than not incurred in or caused by the Veteran's service, including his reported duties as a combat photographer. The examiner noted that a review of the records show that from 2012 to the present the Veteran has reported anxiety and depression due to medical issues and financial problems. The examiner then noted that when asked what he attributed his depression to, the Veteran answered not having close relationships with his two children and an impending eviction from his apartment. The examiner then noted that the 2013 diagnosis of anxiety was related to medical and pain issues, referring to a November 20, 2013 VA psychiatry note. Taken together, the July 2016, November 2019 and January 2020 VA examination opinions show that the Veteran does not have a DSM-5 diagnosis of PTSD, but does have a diagnosis of unspecified depressive disorder that is etiologically unrelated to the Veteran’s service, but rather, is entirely related to his current life stressors. Thus, The Board finds that the sum of these VA examination opinions are significantly probative in nature. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 205 (2008). The Board also acknowledges that laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, and that such opinions may support a claim of service connection. See, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). While the Veteran is certainly competent to report his symptoms, he is not competent to attribute these symptoms to a diagnosis of PTSD, which requires a definitive clinical diagnosis based on knowledge of psychiatric medicine. See, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.304 (f). Further, any such opinions here would be significantly outweighed by the lack of diagnosis from the Veteran's treating clinicians and the VA examiner, who clearly hold the level of medical expertise to address the nature and etiology of the Veteran's psychological symptoms. Finally, the Board notes that the Veteran’s assertions of PTSD are essentially conclusions that he has PTSD, as opposed to descriptions of symptoms. As such, the Board find the Veteran’s lay statements to be of no probative value. In light of the above, the Board finds that the weight of the evidence is against a finding that the Veteran’s unspecified depressive disorder is etiologically related to his service. The benefit of the doubt rule is therefore inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. In the December 2019 VA addendum, the examiner noted that, per medical literature, circumcision does not adversely affect sexual functions but does cause a significant improvement in erectile function and overall sexual satisfaction. The examiner further noted that erectile dysfunction has numerous potential causes, to include diabetes. Here, as the Veteran has a pending claim for service connection for diabetes, and as no opinion regarding whether his diabetes could be the cause of his erectile dysfunction, the Board finds that these matters are inextricably intertwined. As such, a remand is required. 2. Entitlement to service connection for diabetes mellitus type 2, right leg problem, fourth toe on left foot amputation, right foot ulcer and peripheral neuropathy of the bilateral lower and bilateral upper extremities are remanded. This matter was last before the Board in January 2020, at which time it was remanded for further development to determine whether the Veteran had served within the 12-nautical-mile territorial sea of Vietnam and, if so, to provide the Veteran with VA examinations to determine whether his right leg problem, fourth toe on left foot amputation, right foot ulcer and peripheral neuropathy of the bilateral lower and bilateral upper extremities were etiologically related to said diabetes and/or his service. The Board finds that there has not been substantial compliance with the remand directives and a further remand is necessary. Stegall. The matters are REMANDED for the following action: 1. Conduct all factual development necessary to determine whether the USS Saratoga served within the 12 nautical mile territorial sea of Vietnam at any point while the Veteran was stationed on board during the period from January 9, 1962, to May 7, 1975, or whether the Veteran was otherwise exposed to herbicide agents while on active duty. All efforts to verify any such service must be documented of record. If no records are found and additional requests would be futile, notify the Veteran and his representative. 2. If it is determined that the Veteran was stationed in the 12-nautical-mile territorial sea of Vietnam during the period from January 9, 1962, to May 7, 1975, then obtain a VA examination regarding the Veteran’s claimed peripheral neuropathy, right upper extremity; peripheral neuropathy, left upper extremity; peripheral neuropathy, right lower extremity; peripheral neuropathy, left lower extremity; right foot ulcer; right leg problems; amputated fourth toe on left foot; and erectile dysfunction. For each disability above, the examiner must review the claims file, examine the Veteran and provide responses to each of the following questions: Whether it is at least as likely as not that the disability began in service within one year of the service separation, or it is otherwise etiologically related to the Veteran’s time in service. Whether it is at least as likely as not that the disability was caused by diabetes mellitus type 2. Whether it is at least as likely as not that the disability was aggravated by diabetes mellitus type 2. 3. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of possibility," but rather that the evidence is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.