Citation Nr: 21003724 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-04 809 DATE: January 22, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder that is etiologically related to service or caused or aggravated by his service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to July 1973. In a decision issued in November 2019, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an order granting a Joint Motion for Remand (JMR) which vacated the Board's November 2019 decision and remanded this matter on appeal for adjudication consistent with the instructions outlined in the JMR. In that regard, the JMR instructed that the Board should consider the competency and credibility of the Veteran’s July 2018 statement regarding his psychiatric symptoms after returning home from the military and, based on this consideration, the Board should determine whether additional development is necessary. As will be explained more fully below, the Board finds that the Veteran’s statement regarding his psychiatric symptoms after returning home from the military is not credible and, therefore, no additional development is necessary. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Further, service connection for PTSD requires medical evidence establishing a clear diagnosis in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor actually occurred; and a link established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. See May 2013 Statement in Support of Claim. Specifically, the Veteran asserts that this disorder is related to his service at the Udorn Royal Thai Air Force Base in Thailand and/or is related to his service-connected prostate cancer. See August 2013 Correspondence. Initially, the Board acknowledges that while the Veteran’s VA treatment records reflect that he was given a rule out diagnosis for PTSD, simply specifying the need to rule out a diagnosis is not sufficient to establish a diagnosis in and of itself. See April 2015 VA Treatment records. Furthermore, the Veteran was evaluated for PTSD in August 2013, September 2015, and June 2018 and it was determined that he did not meet the diagnostic criteria for PTSD under either the DSM-IV or DSM-5 criteria. More recent VA treatment records also do not reflect a diagnosis for PTSD under either the DSM-IV or DSM-5 criteria. Therefore, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis for PTSD. See 38 C.F.R. § 4.125(a). Instead, the record reflects that the Veteran has been given a diagnosis of adjustment disorder with anxiety. See April 2015 VA Treatment records. The Board notes that the Veteran’s claim for PTSD has been expanded to include all acquired psychiatric disorders, to include his adjustment disorder with anxiety. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, consideration shall be given to whether service connection is warranted for this disorder. As will be explained more fully below, service connection is not warranted because the evidence does not show that this psychiatric disorder was incurred in or is otherwise related to the Veteran’s active duty service and/or is not caused or aggravated by his service-connected prostate disorder. In that regard, the Veteran underwent a VA examination in September 2015 to determine the etiology of his acquired psychiatric disorder. The examiner diagnosed adjustment disorder with anxiety (with symptoms of anxiety, sleep impairment, and difficulty establishing and maintaining effective work and social relationships) and found that the criteria for a PTSD diagnosis were not met. The examiner also rendered a negative nexus opinion as to whether the Veteran’s adjustment disorder was related to service-connected prostate cancer. She explained that, at the Veteran’s recent radiotherapy follow-up, the Veteran reported that he was doing well and there was no evidence of disease. She explained further that it was more likely that the Veteran’s anxiety was related to his mother’s death, the ongoing legal proceedings against his siblings regarding his mother’s estate, and his financial difficulties. The examiner noted that the Veteran had no mental health treatment until November 2013, after his mother’s death and after he was denied service connection for PTSD. In August 2013 and June 2018, the Veteran underwent VA examinations to assess his psychiatric disorder and the examiners indicated that, while the Veteran demonstrated psychiatric symptoms, he did not meet the diagnostic criteria for PTSD. Both VA examiners explained that the Veteran’s stressors did not meet Criterion A (exposure to actual or threatened death, serious injury, sexual violence, or threat to physical integrity of self or others) to support a diagnosis of PTSD. In December 2018, the Board determined that the VA examinations of record did not provide an opinion as to whether the Veteran’s prostate cancer had aggravated his psychiatric disability and requested an addendum opinion to address this question. In May 2019, an addendum opinion was procured from the same VA examiner who conducted the September 2015 VA examination to further address the etiology of the Veteran’s psychiatric disorder. The examiner opined that the Veteran’s adjustment disorder was not related to his military experiences and was not due to or worsened by his prostate cancer. The examiner explained that the Veteran’s adjustment disorder was more likely related to his psychosocial stressors since his mother’s illness and death in 2011. The examiner also referenced the Veteran’s treatment records and indicated that there was no evidence of the Veteran’s mental health symptoms being related to his military experiences or his prostate cancer. The Board finds this opinion to be highly probative as it was well supported and based on review of the record, an accurate understanding of the medical history, and examination of the Veteran. There is no probative evidence to the contrary. The Board acknowledges the August 2013, July 2018, and April 2020 statements that indicate, upon returning home from the military, the Veteran suffered psychiatric symptoms consisting of outbursts, fear of sleeping, hypervigilance, paranoia, nervousness, argumentativeness, agitation, and anger. Significantly, however, the more probative evidence of record contradicts and outweighs the Veteran’s self-reported history of psychiatric symptoms and statements regarding continuity of symptomatology. In pertinent part, despite the Veteran’s more recent reports of experiencing psychiatric symptoms immediately following service, his service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for psychiatric symptoms. Moreover, in January 1973, when he was examined for separation, he was clinically evaluated as psychiatrically normal. In a corresponding January 1973 separation medical history report, he also reported that he had no frequent trouble sleeping, no depression or excessive worry, and no nervous trouble of any sort. Post-service, VA treatment records are silent for psychiatric symptoms or treatment until 2013, when the Veteran appears to have first sought treatment for his psychiatric symptoms. Notably, VA treatment records from January 2010 through October 2013 show the Veteran’s periodic denial of psychiatric symptoms to include mood changes or hallucinations. Consistent with the VA examiner’s findings above, the Veteran’s VA treatment records show that he sought mental health treatment only after he experienced more recent psychosocial stressors from his mother’s death and after he was denied service connection for PTSD. As this evidence contradicts and outweighs the Veteran’s more recent reported history of experiencing psychiatric symptoms after returning home from the military, the Board finds these statements are not credible and are not assigned any probative value. The Board emphasizes that even if the Veteran’s statements regarding continuity of his symptoms since service were accepted as true, he would not be competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current psychiatric disorder. Similarly, although the Veteran may believe his current psychiatric disorder is related to his service or his prostate disorder, he is not competent to provide a nexus opinion regarding these issues. These questions are medically complex and require specialized medical education and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, they are outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such determinations. See id. at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2015 and May 2019 VA medical opinions which are the only medical opinions available in this case. In sum, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis to support service connection for PTSD. Moreover, there is no evidence, beyond the Veteran’s own unsubstantiated statements, to establish a nexus between the Veteran’s acquired psychiatric disorder and his military service and/or his service-connected prostate cancer. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). As indicated by the VA examiner in September 2015, following recent radiotherapy, the Veteran reported he was doing well. The same VA examiner, in May 2019, indicated further that there was no evidence to suggest a relationship between the Veteran’s psychiatric disorder and his military service and no evidence to suggest the Veteran’s psychiatric disorder was due to or worsened by prostate cancer. Rather, it was more likely that the Veteran’s psychiatric disorder was due to his psychosocial stressors related to his mother’s illness and death. [Anecdotally, it is noted that the Veteran was initially diagnosed with prostate cancer as of September 2009 and began radiation therapy as of January 2010. This was well before he sought treatment for psychiatric symptoms.] Accordingly, the Board finds that the preponderance of the evidence is against establishing a nexus between any acquired psychiatric disorder, to include adjustment disorder with anxiety, and the Veteran’s active duty service and/or his service-connected prostate cancer. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for an acquired psychiatric disorder must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.