Citation Nr: 21004999 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-24 922A DATE: January 28, 2021 ORDER Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. A total disability rating based on individual unemployability due to service connected disability (TDIU), is denied. FINDINGS OF FACT 1. The Veteran does not have a psychiatric diagnosis, to include PTSD. 2. The Veteran is not prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1951 to June 1954. The case is on appeal from January 2013 to July 2014 rating decisions. The claims came before the Board in April 2017 and it denied the claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2018 Order, the Court granted a January 2018 Joint Motion for Remand (JMR), vacating the Board’s decision and remanding the case for further development and readjudication. The claims most recently came before the Board in February 2019 and were remanded for further development. The Board notes that in October 2020, the Veteran’s representative requested a 90 day extension to submit additional evidence. The record was held open for 90 days. Thereafter, she submitted an October 2020 correspondence, which included completed VA Forms 21-4142 and 21-4142a. However, thereafter, no additional evidence was received. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative 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). 1. Service connection for a psychiatric disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For PTSD, establishing service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM); 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). Facts The Veteran contends that he has PTSD or another psychiatric disorder that had its onset in service or is otherwise related to service, including from direct fire, mortar, and bomb attacks while in Korea. The Veteran’s service treatment records are silent for complaints and treatment related to a psychiatric disorder, and also do not contain evidence related to mortar or bombing attacks. Along with the Veteran’s August 2012 claim, he submitted an August 2012 private medical opinion from his family physician. The examiner indicated the Veteran presented with symptoms of nervousness, hypervigilance, anxiety, sleep problems, avoidance and irritability. Additionally, the examiner reported that there was medical evidence diagnosing the condition as PTSD in conformance with DSM criteria. She noted the Veteran had incidents in Korea where he was at risk of death; he experienced direct fire attacks, mortar, and bombing; he witnessed the death of fellow soldiers; and was under constant stress with sleep deprivation. She indicated the Veteran was on the front line of battle and in constant contact with the enemy. She stated the Veteran had mortar fragment wounds on his left gluteus as a result of one of the incidents during service. She opined there is credible evidence supporting that the Veteran’s claimed in-service stressors occurred and further, that there is evidence of a link between his psychiatric symptomatology and such stressors. The Veteran was afforded a December 2012 VA examination from a psychiatrist in which the examiner diagnosed him with depressive disorder not otherwise specified (NOS), by history. She indicated the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM criteria. With regard to the diagnosed depressive disorder, the physician reported the condition was not related to service. She stated there is no temporal relationship between the Veteran’s military stressors and the onset of his depression symptoms. She noted the main stressor for the Veteran’s psychiatric symptoms of depression, anxiety, and sleep difficulty seemed to be his spouse’s illness and eventual death, six years prior. The claim was remanded by the Board in April 2016 for further development, to include VA and private medical records. As noted, the claim was denied by the Board in April 2017 and appealed to the Court. The January 2018 JMR indicated that the Board should reassess the probative value of the August 2012 medical opinion in support of the claim. The Board notes a June 2018 statement was submitted from the Veteran’s representative arguing that the Veteran’s psychiatric disorder was related to his combat experience during the Korean War. She indicated the Veteran’s primary care physician examined him and concluded there is a link between his psychiatric symptomatology and in-service stressors. She reported the August 2012 medical opinion from Dr. Ortiz Valentin merits more probative weight than the December 2012 VA examination report. Moreover, the VA examiner found the Veteran does not have PTSD, as he does not have persistent recollections of in-service trauma, persistent avoidance of stimuli associated with the trauma, and persistent symptoms of increased arousal. The representative stated this is inconsistent with the Veteran’s reports and medical history, and as such, the August 2012 medical opinion in support of the claim is more persuasive. The claim was remanded by the Board in February 2019 for further development, to include a VA opinion to determine whether a psychiatric diagnosis is established, and if so, the etiology of such. The Veteran was afforded an August 2020 VA examination in which the examiner indicated that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. Further, no other psychiatric diagnosis was established. The examination was by a psychiatrist who noted the Veteran has a history of psychiatric complaints and treatment since 2004, with a diagnosis of anxiety disorder, in remission. The examiner indicated the Veteran does not fulfill the symptom criteria for persistent re-experiencing of the traumatic event, avoiding reminders of the trauma or increased anxiety and emotional arousal. The physician reported that neither the Veteran’s military service nor the trauma exposure caused impairment in marital relations, parenting performance, or social, occupational, or other areas of functioning. She stated there was no change in the functional status or in the quality of life due to the trauma exposure, as the Veteran is living with successful social and family relationships and is enjoying his retirement. Therefore, she opined, a diagnosis of PTSD cannot be provided and there is no other mental disability diagnosed. Moreover, the mental status examination, the clinical history, and the psychosocial course are negative for a mental condition. Additionally, with regard to the August 2012 medical opinion in support, the August 2020 physician noted that her specialty, the practice of psychiatry, as well as psychology are regulated fields. She indicated the August 2012 opinion was provided by a primary care physician, not a physician trained or certified in the treatment or proper diagnosis of a mental illness. She stated therefore, the opinions and conclusions provided in such report are beyond the expertise and qualifications of the author. The August 2020 examiner reported, with regard to the lay statements in the record, that the Veteran identified different stressors and incidents during active duty and combat. As noted, the examiner found the Veteran does not fulfill the symptom criteria for a PTSD diagnosis, as the military service and trauma exposure did not cause impairment in his marital relations, parenting performance, as well as social, occupational or other areas of functioning. She indicated the Veteran was gainfully employed until 1987, including 32 years working, and “is living a very successful family and social life.” The Board notes the Veteran has received psychiatric care through the VA Medical Center. However, August 2013 and April 2014 VA treatment records showed negative screens for depression. Later VA records also showed no diagnosis for depression or another psychiatric condition, including records dated July 2017, May 2018, September 2018, May 2019 and August 2020. Analysis The Board finds service connection is not warranted for a psychiatric disorder, to include PTSD. The most persuasive evidence of record weighs against the establishment of a current psychiatric diagnosis. The Board finds the August 2020 VA examination report to be the most persuasive evidence of record. The examiner thoroughly reviewed the Veteran’s record, including the medical evidence in favor of and against the claim. Based on this review, along with her clinical experience as a psychiatrist, the examiner opined the Veteran does not have an established diagnosis of PTSD or any other psychiatric condition. She supported her conclusions with well-reasoned analysis considering the relevant facts. Her opinion is afforded significant probative weight because as a psychiatrist, she is the appropriate medical specialty to determine whether a psychiatric diagnosis has been established for the Veteran. Moreover, her opinion is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board acknowledges the August 2012 medical opinion in support of the claim, which has been addressed above. While the August 2012 examiner opined that the Veteran has an established psychiatric diagnosis and that such was caused by his in-service stressors, the Board accords greater probative weight to the August 2020 VA opinion. As noted, the August 2020 opinion was provided by a licensed psychiatrist, the appropriate specialty to address the claim for service connection for a psychiatric disorder, to include PTSD. Further, the August 2020 examiner provided an extensive review and discussion of the Veteran’s history, including his medical history. She accurately opined that neither the Veteran’s military service nor the trauma exposure during such service caused impairment in his marital relations, parenting performance, or social, occupational or other areas of functioning. Moreover, she noted the Veteran had no change in his quality of life due to the in-service trauma, and partook in successful social, occupational and family relationships, including approximately 32 years of employment. Therefore, the Board finds the August 2020 medical opinion to be the most persuasive evidence of record. The Board further acknowledges the Veteran’s and his representative’s contentions that he has a psychiatric disability which is related to service. While the Veteran is competent to report his observations, establishing a psychiatric diagnosis which meets the DSM criteria is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (“PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.”). Therefore, the lay opinions of the Veteran and his representative as to the current established psychiatric diagnoses are afforded less probative weight than the August 2020 medical opinion. Accordingly, the preponderance of the evidence is against the claim of service connection for a psychiatric disorder, to include PTSD. The current disability element of the claim is not established. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for a psychiatric disorder, to include PTSD, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. A TDIU. Legal Criteria A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Where these criteria are not met, but the veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis The Veteran seeks entitlement to a TDIU based on his service-connected conditions, which include tinnitus and a 10 percent rating from August 14, 2012, and scar, residuals of a pilonidal cyst removal from the left gluteus and a noncompensable rating from April 15, 2011. In an April 2014 TDIU application, the Veteran reported being unable to work due to his service-connected disabilities since January 1994, and having last worked full-time in January 1994. He further reported graduating high school and attending two years of college. The Veteran was afforded a February 2012 VA examination for his gluteal disability and scar in which the examiner indicated the disorder had no impact on his ability to work. August 2016 and September 2019 VA examination reports also noted the disorder has no impact on the Veteran’s ability to work. A December 2012 VA examination for the Veteran’s tinnitus found the disorder did not impact his ability to work. He did report, however, that he has difficulty understanding conversations unless the speaker is close to him and he has greater difficulty in group conversations or if there is competing noise. The Board finds a TDIU is not warranted. The Veteran is currently service connected for only tinnitus and residuals of a pilonidal cyst removal from the left gluteus. The evidence does not support the Veteran is prevented from securing and following a substantially gainful occupation solely as a result of such disabilities. The Board is sympathetic to the impact caused by the Veteran’s service-connected disabilities, both professionally and personally. However, those problems have been compensated by the schedular ratings for such disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the Veteran’s disabilities caused some economic impairment, his assigned disability ratings contemplate his level of occupational impairment. (Continued on the next page)   In sum, the evidence does not show that the Veteran’s service-connected disabilities preclude securing or following substantially gainful employment. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is not warranted. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.