Citation Nr: 20052961 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-31 582 DATE: August 10, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder other than an anxiety disorder, to include post-traumatic stress disorder (PTSD) and depression, is denied. FINDING OF FACT The Veteran’s symptoms do not meet the diagnostic criteria for PTSD or depression. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder other than an anxiety disorder, to include post-traumatic stress disorder (PTSD) and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f), 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1963. The Veteran’s service included a tour of duty in the Republic of Vietnam from September 1962 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA). In May 2018, the case came before the Board. At that time, the Board denied entitlement to service connection for a neck disorder, bilateral upper extremity neuropathy, and bilateral lower extremity neuropathy. In addition, the Board granted service connection for chronic residuals of a right-hand laceration. Lastly, the Board remanded the Veteran’s psychiatric claim for an additional examination. In September 2019, the RO issued a rating decision that granted entitlement to service connection for an anxiety disorder. 1. Entitlement to service connection for an acquired psychiatric disorder other than his service-connected anxiety disorder, to include posttraumatic stress disorder (PTSD) and depression The Veteran contends that he has PTSD and depression due to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Service connection for PTSD requires a medical diagnosis of PTSD 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. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b) (2018); 38 C.F.R. § 3.304(f). Effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the Board notes that the Veteran’s psychiatric disorder has been diagnosed as unspecified anxiety disorder. As to the Veteran’s lay statements, the Board notes that the Veteran contends that he has developed PTSD due to his military service in Vietnam. The Board also acknowledges that the Veteran’s family members submitted lay statements regarding the observable symptoms that they witnessed the Veteran exhibit. The Board acknowledges that the Veteran’s family members are competent to be able to report on the observable symptoms that they have witnessed. However, the Veteran’s family members are not competent to provide a medical opinion regarding the nature and etiology of the Veteran’s psychiatric disability. Thus, the Board is only able to place limited evidentiary value on these lay statements. Turning to the medical evidence at hand, the Board notes that the Veteran’s service treatment records are silent for a diagnosis or treatment for a psychiatric disorder while on active duty. In August 2015, the Veteran attended a VA psychiatric examination. At the examination, the Veteran reported that he worked as a stock and supply clerk and he felt that he was under a lot of stress when he was distributing materials to soldiers who were going on missions and one occasion a fellow soldier was killed. Following the examination, the examiner opined that the “Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria.” In March 2016, the Veteran attended a private psychological evaluation. Following the examination, the examiner diagnosed the Veteran with PTSD, a lumbar and cervical disability, carpal tunnel syndrome, osteoarthritis; and tinnitus. The psychologist then stated that “based on our clinical findings we conclude that the majority of these veterans disabilities are service connected, are permanent and total in nature.” The Board is unable to place any probative value on this medical opinion because the psychologist did not include any diagnostic testing that he conducted to reach his conclusion that the Veteran met the diagnostic criteria for PTSD. The Board is also unable to place any probative weight on this opinion because the psychologist provided an opinion that was conclusory in nature, and it was not a well-reasoned and thorough analysis of the Veteran’s psychiatric disorder. In June 2017, the Veteran submitted a letter from his private therapist. The therapist simply stated that the Veteran was receiving treatment for PTSD and anxiety. The Board is also unable to place any probative weight on this piece of evidence. The Board has reached this conclusion because this letter simply established that the Veteran was receiving psychiatric treatment, and the therapist did not provide a nexus or medical link between the Veteran’s reported symptoms and his military service. In June 2019, the Veteran attended an additional VA psychiatric examination. At the June 2019 examination, the Veteran stated that he felt that he was under stress while in Vietnam because there were siren sounds that alerted him that the enemy was around the base. Following the examination, the examiner diagnosed the Veteran with an unspecified anxiety disorder. The examiner also found that the Veteran did not meet the diagnostic criteria for an additional psychiatric disorder. The examiner stated that after a review of the Veteran’s claims file to include the available lay statements, medical treatment records, private medical examination, and August 2015 VA examination, there is no evidence to fulfill the DSM 5 diagnostic criteria for PTSD. The examiner also stated that the annotation of “R/O PTSD that was included in the Veteran’s VA treatment records is not a formal diagnosis for PTSD. The examiner stated that based on the “analytical findings described above, the examiner cannot render an opinion requested regarding a PTSD diagnosis or other formal diagnosis depression included, at present.” The examiner further stated that she determined that there is no evidence of psychiatric complaints, psychiatric findings, or psychiatric treatment during his military service. The examiner also stated that she determined that there is no evidence of psychiatric complaints, findings, or treatment within one year after discharge from the military service. The examiner also indicated that she reviewed the medical evidence submitted by the Veteran and stated that the March 2016 and the July 2017 medical opinions that diagnosed PTSD did not contain mental status examinations. Lastly, the examiner stated that after careful review of all medical evidence contained in the Veteran’s claims file; the link between the Veteran’s neuropsychiatric condition and his in-service stressor related event, cannot be made. In sum, the Board finds that entitlement to service connection for an acquired psychiatric disorder other than anxiety disorder, to include PTSD and depression, is not warranted. After a review of the record, the Board finds that the June 2019 VA examination, which found that the Veteran did not meet the diagnostic criteria for PTSD and depression, is the most probative evidence of record. The Board has reached this conclusion because this opinion was based on diagnostic testing and a full review of the Veteran’s claims file. The Board has considered the Veteran and his family members’ contentions; however, these contentions are outweighed by the findings of the VA examiner because the VA examiner has the medical training to provide an opinion regarding the etiology of the Veteran’s psychiatric disorder. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a psychiatric disorder other than an anxiety disorder, to include PTSD and depression, must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.