Citation Nr: 21003146 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-10 447 DATE: January 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD) and an unspecified insomnia disorder is denied. FINDING OF FACT The Veteran does not have PTSD under the appropriate Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria, and his unspecified insomnia disorder is not related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder including PTSD and an unspecified insomnia disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to December 1969. In March 2019, the Board issued a decision that denied service connection for PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2020 Order, pursuant to a Joint Motion for a Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the March 2019 decision for compliance with the JMPR. The case was remanded by the Board in August 2020 for additional development. Although the issue certified to the Board was for service connection for PTSD, in light of Clemons v. Shinseki, 23 Vet. App. 1(2009), the issue has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a sleep disorder, to comport with the record. Service Connection The Veteran seeks service connection for a psychiatric disorder, claimed as PTSD and/or a sleep disorder, which he asserts is related to traumatic experiences during his military service. 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases 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. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There are particular requirements for establishing service connection for 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. If the evidence establishes that the 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 the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, supra; Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). However, if a stressor claimed by a veteran is related to 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 the 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 the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). A diagnosis of PTSD must conform to the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). 38 C.F.R. § 4.125(a). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in the upon the to the recently updated Fifth Edition, (DSM-5). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s service personnel records confirm that he served on active duty in the Republic of Vietnam during the Vietnam era. However, there is no indication he engaged in combat, as he did not receive any commendations or awards, such as the Combat Infantryman Badge, Purple Heart, or similar citation, typically awarded primarily or exclusively for circumstances relating to combat. However, the Veteran has reported in-service stressors that fall within the scope fear of hostile military or terrorist activity under 38 C.F.R. § 3.304 (f)(3). See January 2013 VA examination report. That said, the critical element in this case is that, based on the record, he lacks a diagnosis of PTSD consistent with DSM criteria. Service treatment records are entirely negative for psychiatric complaints or symptomatology. Likewise, these records do not indicate any complaints or findings suggestive of a chronic sleep disorder including specific complaints of disordered sleep, snoring, shortness of breath, fatigue, excessive daytime sleepiness, or other signs indicative of sleep apnea. The Veteran’s separation examination report shows no psychiatric abnormality, and he specifically denied a history of depression, excessive worry, nervous trouble, and trouble sleeping. The earliest evidence (documentation) of any pertinent symptoms or complaints is found in VA psychiatric outpatient treatment records, which show a positive PTSD screen in 2014, but no definitive diagnosis. In addition, his medication lists do not include any of the commonly prescribed medications used to treat psychiatric disorders. VA outpatient treatment records dated from 2013 to 2020. Also, of record is a June 2011 sleep study which noted the Veteran’s sleep efficiency was within normal range. The Veteran was afforded a VA examination in January 2013. The examiner concluded that the Veteran did not meet the criteria for any mental disorder diagnosis under DSM-5, including PTSD, but did note that he had difficulty falling and staying asleep. The psychologist noted the Veteran denied ever having sought mental health treatment and had positive coping strategies for the painful thoughts related to Vietnam. He had a positive interpersonal and occupational history with meaningful relationships and a successful/long career with no reported occupational problems related to psychiatric symptoms. He had no history of suicide attempts. She then found that while the Veteran’s in-service stressor of mortar attacks met PTSD diagnostic criterion A (directly experienced/witnessed a traumatic event), he did not meet criterion B, C, E, and F (which relate to manifested symptoms; duration of symptoms; and symptoms causing significant distress or impairment). See January 2013 PTSD VA C&P Examination Report. When examined by VA in October 2020, the examiner confirmed that the Veteran does not meet clinical or DSM-5 criteria to support a diagnosis of PTSD and that the appropriate diagnosis was unspecified insomnia disorder which is unrelated to his time in service. In going through the PTSD diagnostic criteria, the examiner reported the Veteran met requirements for Criterion A, B, E, and F (which relate to direct exposure to a traumatic event; intrusion symptoms; sleep disturbance; and duration of symptoms). However, he did not meet Criterion C, D and G (which relate to persistent avoidance of associated stimuli; negative alterations in cognition and mood; and symptoms causing significant distress or impairment). The examiner explained that the Veteran served in Vietnam and experienced very stressful traumatic events; however, these experiences caused him very few lasting mental health difficulties and his reported symptoms do not impair his function in any appreciable way. The Veteran has never sought mental health treatment for either PTSD or sleep disorders while in the service or later in his civilian life and his records reflect this. The examiner then reiterated that the events that the Veteran described, while unpleasant, do not meet the criteria necessary to make a PTSD diagnosis or any mental disorder diagnosis. After weighing all the evidence, the Board finds that service connection for an acquired psychiatric disorder including PTSD is not warranted as the overall disability picture fails to establish a valid diagnosis during the appeal period. The VA opinions are both probative and persuasive as they are based upon a review of the claims file and the relevant diagnostic criteria. The psychologists offered clear explanations for their opinions, relying on the Veteran’s reported stressors, and specific medical history in concluding the Veteran does not have PTSD or any other psychiatric disorder. Further, neither the Veteran nor his representative have provided any documentation alleging that he was diagnosed with a psychiatric disorder at any time during the appellate period. The Board is also unable to attribute the post-service development of sleep disorder to military service. The Veteran did not experience chronic sleep disorder symptoms in service and there is no evidence of symptoms until 2011, many years after service. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000). There is also no evidence linking the diagnosed unspecified insomnia disorder to service. (Continued on the next page)   While the Veteran has argued that a relationship exists between his current psychiatric symptoms and service, such an assertion treads into the realm of medical expertise as he is not competent to diagnose psychiatric disorders or to opine that his symptoms meet the criteria for qualification as a disability for VA purposes. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In any event, the probative value of his belief is outweighed by that of the VA psychologist who clearly does have the education, training and experience to address the etiology of psychiatric disorders. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.