Citation Nr: 20036741 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 18-04 983 DATE: May 28, 2020 ORDER Service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD) is denied. An effective date prior to January 14, 2014, for the grant of a 50 percent rating for a headache disability, is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a psychiatric disorder for VA compensation purposes. 2. VA received a claim for entitlement to an increased rating for the Veteran’s headache disability on January 14, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The criteria for an effective date prior to January 14, 2014 for the grant of a 50 percent rating for a headache disability have not been met. 38 U.S.C. § 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1982 to September 1983. In March 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The Veteran is asserting that he is entitled to a 50 percent disability rating for his headache disorder prior to May 5, 1995 and that he is entitled to an earlier effective date for service connection for his headache disorder. However, the Veteran was assigned a ten percent rating for his headache disability pursuant to a November 1995 rating decision effective May 5, 1995, and did not appeal this decision. Secondly, he was assigned a 30 percent rating for his headache disability pursuant to a November 2012 rating decision effective June 14, 2010, and did not appeal this decision. As the Veteran did not appeal these decisions, they become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As such, the Board welcomes the Veteran to file a claim for a clear and unmistakable error. Therefore, this decision will discuss only the claim for an effective date earlier than January 14, 2014 for the increased rating to 50 percent for the Veteran’s headache disorder. Finally, the Veteran’s psychiatric symptoms have also been diagnosed as depression and PTSD. As such, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD The Veteran is claiming entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, which he asserts is related to active service. Specifically, under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including certain psychoses, 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Upon review of all evidence of record, the Board finds that the Veteran’s service connection claim should be denied. As a preliminary matter, the Board determines that the Veteran does not have a diagnosis of a psychiatric disorder at any point during the period on appeal. Specifically, in order to clarify whether the nature of the Veteran’s psychiatric symptoms is attributable to a psychiatric disorder, the Veteran underwent VA psychiatric examinations in May 2014 and January 2015. After a thorough psychiatric evaluation, the examiners determined that a diagnosis for any other psychiatric disorder was not warranted. With respect to psychiatric disorders, psychological testing did not suggest a psychiatric diagnosis was warranted, and in fact indicated that the Veteran was exaggerating his symptoms and was “malingering.” Thus, while the presence of some psychiatric symptoms was reported, these symptoms alone without an underlying diagnosis, is not a service connectable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In arriving at this conclusion, the Board acknowledges that various psychiatric disorders such as PTSD and depression have been previously diagnosed by the Veteran’s treating medical providers. However, greater probative value is placed on the conclusions of the VA examiners’ determination that a diagnosis for these disorders is not warranted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the unique probative value of opinions provided by VA psychiatric examiners in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). As such, service connection is not warranted for a psychiatric disorder. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In arriving at this conclusion, the Board has also considered the statements made by the Veteran regarding a diagnosis of a psychiatric disorder. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of his psychiatric disorder. See Jandreau, 492 F.3d at 1377, n.4. Because it is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s psychiatric disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder for accrued benefits purposes, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date prior to January 14, 2014, for a 50 percent rating for a headache disability The Veteran generally asserts that he is entitled to an earlier effective date than January 14, 2014 for the Veteran’s 50 percent disability rating for his service-connected headache disability. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §§ 3.400 (b)(2)(i), (ii). For increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400 (o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (finding that a Veteran’s claim for increased disability compensation must have occurred during the one year prior to the date of the Veteran’s claim in order for the Veteran to receive the benefit of an earlier effective date. For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). After reviewing the relevant evidence and applying the above laws and regulations, the Board finds that an effective date prior to January 14, 2014 for the grant of a 50 percent rating for a headache disability is not warranted. VA received a claim requesting an increased rating for the Veteran’s headache disability on January 14, 2014. A June 2014 rating decision granted a 50 percent for a headache disability, effective January 14, 2014. Prior to January 14, 2014, he was assigned a 30 percent rating for his headache disability pursuant to a November 2012 rating decision effective June 14, 2010. The Veteran did not appeal the decision or submit new and material evidence within one year of notification of the decision. The Board did not find a factually ascertainable date of increase during the year prior to the Veteran’s January 14, 2014 claim for an increased rating. 38 C.F.R. § 3.400(o)(2). The Veteran has not raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Here, the Veteran’s service connection claim for the headache disorder was granted in a November 1995 rating decision effective May 5, 1995. The Veteran did not appeal the decision, nor did he submit any new and material within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). As such, this represents a final decision. Accordingly, the Board finds the evidence is against assigning an effective date prior to January 14, 2014, for the grant of a 50 percent rating for a headache disability. 38 C.F.R. § 3.400. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel