Citation Nr: 21000272 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-06 190 DATE: January 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. There is no diagnosis of PTSD in accordance with VA regulation. 2. An acquired psychiatric disorder was not manifest in service and is unrelated to service. 3. An acquired psychiatric disorder is not caused or aggravated by a service-connected disease or injury. CONCLUSION OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 3. An acquired psychiatric disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to October 2002. He had a period of Active Duty for Training from January 1999 to May 1999. He testified before the undersigned Veterans Law Judge at an October 2019 Travel Board hearing. This matter was remanded by the Board in December 2019 for evidentiary development. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) In his April 2017 compensation claim for anxiety, the Veteran indicated that it was secondary to his service-connected sleep apnea, hearing loss disability, and/or tinnitus. He has since asserted that his claimed psychiatric disorder, to include PTSD, is directly due to service. Specifically, the Veteran asserted in a January 2020 VA Form 21-0781 that a fellow servicemember died by suicide and that he was under constant stress and fear while deployed to Saudi Arabia. Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran 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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition 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) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V). Pertinent to the Veteran’s claimed stressor, 38 C.F.R. § 3.304 (f)(3) reads: “If a stressor claimed by a veteran is related to the 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 posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor,” the Veteran’s lay testimony, if consistent with the circumstances of service, will be sufficient to establish the in-service stressor in the absence of “clear and convincing evidence to the contrary.” 38 C.F.R. § 3.304 (f)(3). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As noted, the Veteran asserts that his claimed PTSD is due to the knowledge of a fellow servicemember, with which the Veteran was friends, died by suicide, and due to fear of hostile military activity while stationed in Saudi Arabia. As noted in the Board’s December 2019 Remand, the Veteran submitted private treatment records indicating a diagnosis of PTSD. A review of the Veteran’s personnel records indicates that he was deployed to the Persian Gulf and received Hostile Fire/Imminent Danger Pay between March 2002 and October 2002 and again in May 2003. Service treatment records do not document any relevant complaints, symptoms, treatment, diagnoses, or other notations specific to PTSD or any psychiatric disorder. Clinical evaluation at an April 2007 Retention Examination (post-deployment while in the Army Reserve), documented a normal psychiatric evaluation. In an accompanying Report of Medical History, the Veteran specifically denied any relevant symptoms, to include depression or excessive worry. In July 2009, July 2014, and September 2015 Periodic Health Assessments while in the Army Reserve, the Veteran specifically denied any current or past mental health concerns. The Veteran submitted a November 2017 private treatment report in which a private psychiatrist provided a diagnosis of PTSD and Major Depressive Disorder. the examiner notes that the diagnoses were issued according to the diagnostic criteria of the DSM-5. The same psychiatrist provided a September 2018 assessment confirming these diagnoses. In a supplemental April 2019 report, the psychiatrist asserts a relationship between the Veteran’s psychiatric disorders and his combat experience. The Board notes that there is no evidence that the Veteran served in combat. The Board may not accept medical diagnoses to the extent that they are not supported by the medical evidence or are based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). With respect to “fear of hostile military and terrorist activity,” VA regulation mandates that such a stressor is valid for compensation purposes only if a VA or VA contracted psychiatrist or psychologist makes the determination that the claimed stressor is adequate. 38 C.F.R. § 3.304 (f)(3). As the private psychiatrist’s PTSD diagnosis seems to rely on combat experience (for which there is no evidence) or “fear of hostile military and terrorist activity” (an avenue limited to VA or VA contracted psychiatrist or psychologist by regulation), the Board does not accept the diagnosis. Pursuant to the Board’s Remand, the Veteran was afforded a July 2020 psychiatric examination. After a clinical evaluation, the examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD. Rather, the examiner diagnosed the Veteran with an unspecified depressive disorder. In making the determination that the diagnostic criteria for PTSD were not met, the examiner noted that the Veteran’s claimed stressor, while related to fear of hostile military and terrorist activity, did not meet the necessary criterion. This was not the only missing diagnostic criterion, as multiple criteria were not met. In an accompanying medical opinion, the examiner notes additional PTSD screens during the period on appeal which resulted in negative findings. With respect to the aforementioned private diagnosis, the VA examiner notes that the private psychiatrist related the PTSD diagnosis to “combat” without noting a specific stressor event or appropriately noting that the Veteran was not actually in combat. As noted, there is no evidence in the Veteran’s personnel record that he served in combat. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the July 2020 VA examiner’s opinion that the Veteran does not meet the diagnostic criteria for PTSD as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records and performing an extensive psychiatric evaluation. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the private diagnoses of PTSD to be of little probative value. The private diagnosis erroneously suggests that the Veteran served in combat and to the extent that it relies on section 3.304 (f) (3), VA regulation mandates that such a diagnosis is made by a VA or VA contracted psychiatrist or psychologist. In this instance, the Board finds the January 2020 VA examiner’s opinion to be the of substantial probative value as she provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran’s claims file, an extensive psychiatric evaluation, and an analysis of conflicting medical information. The most probative medical evidence supports a finding that the Veteran does not have a diagnosis of PTSD. The medical evidence of record does not indicate that the Veteran has had a diagnosis of PTSD in accordance with 38 C.F.R. § 3.304 (f) and § 4.125 at any time during the period on appeal. In this regard, the Board finds the VA examination to be well-supported and thorough. In order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed chronic disability at some point during a veteran’s appeal. See McClain, supra; Degmetich, supra; Brammer, supra. Although the Board recognizes the Veteran’s sincere belief in his PTSD claim and description of his symptoms, the most competent medical evidence of record shows that the Veteran does not have PTSD, nor has he had PTSD during any period of his appeal. His assertions are outweighed by the medical evidence showing no diagnosis of PTSD. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for PTSD. Specific to an acquired psychiatric disorder other than PTSD, the Board notes that there are various relevant diagnoses. Most pertinently, a July 2017 VA examiner diagnosed unspecified anxiety disorder, the aforementioned private examiner diagnosed major depressive disorder, and the July 2020 VA examiner diagnosed unspecified depressive disorder. Notably, these disorders are not identified as “chronic” diseases under the provisions of 38 C.F.R. § 3.309, and there is no evidence that he has been diagnosed with a psychosis. As a result, the provisions of 38 C.F.R. § 3.303 (b) are not applicable. As previously noted, service treatment records do not document any relevant symptoms, complaints, treatment, or diagnoses for any psychiatric disorder. Clinical evaluation in April 2007, subsequent to the Veteran’s deployment, documented a normal psychiatric evaluation. The Veteran subsequently denied any relevant psychiatric symptoms, as recently as September 2015. In the November 2017, September 2018, and April 2019 reports, the private psychiatrist provides little rationale linking the Veteran’s acquired psychiatric disorder to service other than the erroneous report of in-service combat. There is minimal probative value. Reonal, supra. The July 2020 VA examiner concluded that the Veteran’s claimed psychiatric disorder (diagnosed as unspecified depressive disorder), was less likely than not related to active service. The examiner cites service treatment records, the Veteran’s lay statements, and likely post-service contributing factors. Here, the Board finds the private opinion to be of significantly less probative value than the July 2020 VA medical opinion. The July 2020 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran’s claims file, an extensive psychiatric evaluation, and an analysis of conflicting medical information. Conversely, the private psychiatrist provided a limited rationale based almost entirely on an inaccurate factual premise. The Board acknowledges the Veteran’s statements that he has experienced psychiatric symptoms and is sincere in his belief that these are related to service. To the degree that the Veteran has reported that he has experienced a continuity of symptoms (or on-going manifestations) since separation from service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a diagnosis of a psychiatric disability during service. Id. The Veteran’s lay evidence of onset and on-going symptoms is far less probative than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. Clinical psychiatric evaluation in the aftermath of separation was normal. The most probative medical opinion of record does not link the Veteran’s remote psychiatric disorders to service. The VA examiner considered the Veteran’s lay assertions and the conflicting medical evidence of record, but ultimately found that the Veteran’s psychiatric disorder was not related to his service. The Board finds that the Veteran’s lay statements are outweighed by the VA examiner’s medical opinion as it was based on consideration of the Veteran’s contentions, review of medical records, and medical expertise. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s currently diagnosed psychiatric disorders are directly related to service and the claim must be denied on a direct basis. The Board will now turn to the Veteran’s theory of entitlement to compensation under section 3.310. Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310 (b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. The May 2017 VA examiner opined that the Veteran’s acquired psychiatric disorder was less likely than not due to or aggravated by service-connected disease or injury, specifically the Veteran’s service-connected obstructive sleep apnea, hearing loss disability, or tinnitus. The examiner notes that there is no relationship between the disorders and that the Veteran’s medical history does not support a finding of causation or aggravation of the psychiatric disorder by service-connected disease or injury. The examiner makes clear that there is no pathophysiological or anatomical relation between the psychiatric disorder and the service-connected sleep apnea, hearing loss disability, or tinnitus, and that the Veteran’s psychiatric disorder is more likely related to post-service accusations made by the Veteran’s secretary and subsequent legal proceedings. Again, the Board finds the VA medical opinion to be of significant probative value. It acknowledges that the Veteran is competent, to attest to factual matters of which he has first-hand knowledge. Jandreau, supra. However, as a layperson, it is not shown that the Veteran possesses additional medical expertise to provide a medical opinion linking his psychiatric disorder to service-connected disease or injury. The sole medical opinion of record addressing the claimed relationship is negative. The VA examiner considered the Veteran’s lay assertions, but ultimately found that the psychiatric disorder was not caused by or aggravated by his service-connected disorders. The Board finds that the Veteran’s lay statements are outweighed by the VA examiner’s medical opinion as it was based on consideration of the Veteran’s contentions, review of medical records, and medical expertise. The Board notes that the Veteran is also service connected for plantar fasciitis and calcaneal spurs, right knee patellofemoral pain syndrome and degenerative arthritis, GERD, and left knee osteoarthritis. However, there is no proof or allegation that these disorders caused or aggravated his psychiatric disorder. In the absence of some proof of a relationship, there can be no valid claim.   The Board finds that the preponderance of the evidence is against a finding that the Veteran’s acquired psychiatric disorder is directly related to service, or in the alternative, secondary to service-connected disease or injury, and the claim must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.