Citation Nr: 21004460 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-09 252 DATE: January 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder claimed as posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. The Veteran does not have PTSD. 2. An acquired psychiatric disability was not present in service, was not manifest to a compensable degree within one year of the Veteran’s discharge from service and is not otherwise related to the Veteran’s service. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 through June 1968. This matter was first before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). The Board conducted a hearing in August 2019 and in November 2019, issued a remand with directives to obtain SSA records and provide the Veteran with an examination to determine the etiology of his PTSD, including an opinion by the examiner regarding the probability that the Veteran’s PTSD is related to his active military service. After reviewing the actions of the Agency of Original Jurisdiction (AOJ), the Board finds there was substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998). PTSD is the type of claim that cannot be limited only to a particular diagnosis but must be considered a claim for any mental disability that may be reasonably encompassed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has broadened the Veteran’s psychiatric disorder claim as noted on the title page. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for PTSD Legal Criteria 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; 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)). 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). In addition, service connection for certain chronic diseases, including psychoses, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). 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 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). 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 v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). In rendering a decision on appeal the Board must also 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) “although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. Factual Background The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, and it is due to service or aggravated by service. The Veteran asserts that he had homicidal and suicidal ideation, and that he sought psychiatric care while in service. At the hearing, the Veteran testified that he experienced stressors while on active duty, to include physical and verbal harassment and racially charged threats which contributed to him being absent without leave (AWOL), subjected to being “cactus masked” for going AWOL and subsequent honorable discharge due to his psychiatric conditions. The Veteran also reported sustaining physical violence while in service to include threats with a razor and/or switchblade and being thrown overboard the military vessel. The Veteran specifically argues that his hearing testimony and other evidence of his condition, support a grant of service connection. In a March 1968 request for psychiatric evaluation by the commanding officer of the Veteran’s vessel, the officer reported detailed accounts of the Veteran’s behavior during service which was akin to inadequate personality. The officer opined that the Veteran had a limited ability to make friends, had a poor ability to adjust to new situations, and confused inability to cope with mounting home problems which he characterized as immaturity. The officer also noted that the Veteran had a lack of ability to apply himself to his work and had crying spells. The Veteran’s examination upon enlistment does not indicate a psychiatric diagnosis. However, service treatment records from April 1968 indicate that the Veteran received a diagnosis of chronic personality disorder and inadequate personality based on his inability to maintain a reasonable adjustment at work with his superiors and colleagues. Military personnel records do not indicate reports of harassment during active service. In August 2013, the Veteran had an outburst at the hospital and went to the VA for psychiatric care. In the same month, he tested positive for PTSD on a screening test. At a VA psychological session in April 2014, the Veteran was recommended for admission to a residential PTSD unit at his spouse’s urging based on his irritability and anger. Though not admitted to the program based on his responses in the screening (he exhibited intensity, anger and willingness to be violent when prompted), the Veteran continued treatment with the VA psychological provider for several months in 2014 and was prescribed medication for treatment of his psychological disorder(s). In December 2019, the Veteran underwent a VA examination wherein the examiner diagnosed the Veteran with adjustment disorder with mixed disturbance of emotions and conduct as well as unspecified personality disorder. The examiner opined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria based on that examination. The examiner further opined that the Veteran has occupational and social impairments with reduced reliability and productivity. The examiner noted that the Veteran presented with an irritable mood and labile affect and displayed a high degree of emotionality with excessive dramatics when discussing the details of his life. The examiner further noted that the evaluation process was difficult due to the manifestation of the Veteran’s personality disorder traits rather than mania or psychosis. The December 2019 examiner also opined that the Veteran did not meet DSM-IV or DSM-5 criteria for PTSD. The examiner found that the events the Veteran reported experiencing during his time in service, although upsetting to him, did not qualify as a PTSD stressor as there was no evidence that his life was in danger and the documentation in his service treatment records (STRs) and military personnel records do not substantiate his reporting of events. The examiner further opined that based on the evaluation and a review of the record, the Veteran meets DSM-5 criteria for Adjustment Disorder with Mixed Disturbance of Emotions and Conduct as well as Personality Disorder NOS; however, it is less likely than not (less than 50% probability) that these conditions was first manifested during or is otherwise related to his time in service. Analysis Based upon a review of all the lay and medical evidence, the Board finds that service connection for an acquired psychiatric disorder, including PTSD, is not warranted. The Board considered the evidence of record and finds that the Veteran does not have a current diagnosis of PTSD. The sole instance of a PTSD diagnosis was in August 2013 when the Veteran had an outburst at a VA facility and subsequently tested positive on a PTSD screening evaluation. Also, when the Veteran sought admission to a residential PTSD unit, he was not admitted to the program based on results of his screening evaluation due to his aggressive behavior. Further, the remaining evidence of record does not support the results of the PTSD screening as it was not made utilizing the DSM-V and the August 2013 instance is considered a remote diagnosis. The Board also considered the representative’s brief as well as the Veteran’s assertions that he experienced poor treatment while enlisted to include humiliation by peers and authority figures and also being subject to racial slurs as he was the only serviceperson of his ethnicity on the ship. Though the Board sympathizes with the allegations, the alleged stressors are not corroborated by the record. The March 1968 report by the Veteran’s commanding officer attributed the Veteran’s conduct to a behavior disorder and certain familial stressors as opposed to PTSD. Specifically, the record does not support that the Veteran went AWOL because of military stressors but was AWOL due to familial circumstances to include the behavior of his mother and younger siblings. Additionally, the alleged events to include physical and verbal harassment, racially charged threats and being “cactus masked” were not considered hostile military activity by a VA psychiatrist or psychologist and these events were not documented in the record. Thus, there is no clear and convincing evidence to support that the Veteran’s alleged experiences while on active duty were considered in-service stressors resulting in PTSD. In considering the PTSD, the Board finds the December 2019 VA examination more probative than the results of the August 2013 PTSD screening. The December 2019 examination report was conducted by a psychologist, was based upon a comprehensive examination of the Veteran, and the examiner specifically considered the DSM criteria for a diagnosis of PTSD and other mental disorders. The VA psychologist listed each criterion for a diagnosis of PTSD and indicated whether the Veteran met the criterion. The psychologist who conducted the August 2013 mental health assessment did not set forth a discussion of the DSM criteria and only generally stated that the Veteran tested positive for PTSD. The Board finds that the VA examiner’s assessment of the Veteran’s claimed symptoms in accordance with the correct diagnostic criteria, as compared to the conclusory nature of the other examiner’s assessment, lends more probative value to the December 2019 VA examiner’s opinion on the matter of whether the Veteran has PTSD. The Veteran’s assertions that he had PTSD due to active service are afforded limited if no probative weight in the absence of a showing that the Veteran has the expertise to render opinions about medical matters. The Veteran, as a lay person, is competent to describe observable symptoms. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); as to the specific issue in this case, an opinion as to a psychiatric diagnosis in accordance with DSM, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Some medical issues, such as providing psychiatric diagnoses, require specialized training, and are therefore not susceptible of lay opinions on etiology. There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical or psychiatric diagnoses or medical opinions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Thus, the Board finds that the weight of the evidence shows that the Veteran does not have PTSD. The Board also considered whether the Veteran has any psychiatric disorders other than PTSD that are related to service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the December 2019 VA examiner did diagnose the Veteran with for Adjustment Disorder with Mixed Disturbance of Emotions and Conduct as well as Personality Disorder NOS. The examiner also observed that the Veteran continues to experience symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining work and social relationships and difficulty in adapting to stressful circumstances. Additionally, the Veteran’s spouse reported that the Veteran has issues of anger and irritability and the Veteran sought continuous treatment with a VA psychological provider and was also prescribed medication to assist in his treatment. Thus, the Veteran has diagnoses of psychiatric disorders other than PTSD. In determining the existence of a link between the Veteran’s diagnoses and his active service, the Board considered the March 1968 request for psychiatric evaluation of the Veteran by the commanding officer of the Veteran’s military vessel wherein the officer reported detailed accounts of symptoms stemming from the Veteran’s diagnosed personality disorder. The officer opined that the Veteran had a limited ability to make friends, had a poor ability to adjust to new situations, and an inability to cope with mounting home problems. Though these circumstances occurred in service, the Board finds that they were not attributable to any documented in-service stressors as required in 38 C.F.R. § 3.304 (f)(3) and as such, does not find that these diagnoses have a link to the Veteran’s service. Overall, there is nothing in the record to link the Veteran’s adjustment disorder or personality disorder to any event in service. In support of this finding, the Board finds the December 2019 VA examination highly probative as the examiner reviewed the Veteran’s record, considered the Veteran’s statements and conducted a full assessment of the Veteran’s condition. He ultimately concluded that it was less likely than not (less than 50% probability) that the Veteran’s adjustment disorder condition first manifested during or was otherwise related to the Veteran’s time in service and the Veteran’s behavior during service was attributable to an “inadequate personality” and not a psychiatric condition. In his diagnosis of Personality Disorder NOS, the examiner opined that it was less likely than not (less than 50% probability) that personality disorder was a superimposed disease or injury that occurred during his time in service. Further, the examiner considered the Veteran’s accounts of racism and nevertheless, found that the Veteran’s personality disorder was not the result of his military experience but rather, prevented him from adjusting to military life. The Board finds this opinion most probative as the examiner provided a sufficient rationale for these findings, conducted an adequate review of the record an provided a detailed assessment of the Veteran and his history. This opinion is also consistent with the other evidence of record, to include the March 1968 request for psychiatric evaluation, the April 1968 STRs and the responses of the Veteran during his April 2014 psychological session to obtain admission to the PTSD residential program. In sum, as no current PTSD has not been established; as Adjustment Disorder with Mixed Disturbance of Emotions and Conduct as well as Personality Disorder NOS are not shown to be related to service; and as no other currently diagnosed psychiatric disability is shown to be related to service, the preponderance of the evidence is against this claim and it must be denied. (Continued on the next page)   Accordingly, the Board finds that entitlement to service connection for an acquired psychiatric disorder claimed as PTSD is not warranted, and the Veteran’s appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.