Citation Nr: 21061464 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-01 999 DATE: October 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for prostate cancer, to include as secondary to status post endopyelotomy for right kidney ureter pelvic junction obstruction with hydronephrosis is remanded. FINDING OF FACT 1. There is no diagnosis of PTSD in accordance with VA regulation. 2. An acquired psychiatric disorder, to include PTSD, was not manifest in service and is unrelated to service. CONCLUSION OF LAW 1. An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to November 1993. The claims currently before the Board originate from an October 2015 Rating Decision. The Veteran received a hearing in August 2019; however, an audio recording malfunction prevented production of a complete transcript. In an August 3, 2020 letter, the Board notified the Veteran of the issue and offered him the opportunity to testify at another hearing if an affirmative response was sent within thirty days. 38 C.F.R. § 20.717. The Board received no response to the letter. In a May 2021 appellate brief, the Veteran's representative, The American Legion, claimed that the Veteran sent a request for a new hearing in a letter dated August 8, 2020. The Veteran's representative requested a new hearing for the Veteran due to the error. The Board, through the Decision Review Operations Center (DROC), reviewed the files for the Veteran's hearing request, but could not locate the specified hearing request. The DROC contacted The American Legion, who stated that they were not able to locate a record of an August 2020 hearing request and could not explain the reference. The Board concludes that the request for a second hearing does not exist and will adjudicate the claims before the Board. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) 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." See 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). The Veteran claims that an acquired psychiatric disorder, possibly PTSD, is related to service. The Board notes that the Veteran's service records indicate that he participated in Operation Desert Shield/Storm Area of Responsibility and received Kuwait Liberation Medal. The Veteran's report of medical examination, from his October 1988 entrance examination, clinically evaluated that the Veteran had no psychiatric abnormalities. The remaining service treatment records do not document any relevant treatment, complaints, symptoms, or diagnoses specific to an acquired psychiatric disorder. The first post-service reports of a possible acquired psychiatric disorder start in 2012. An August 2012 VA behavioral interview did not identify an acquired psychiatric disorder. The Veteran attended appointments with a VA psychiatrist after this behavioral interview. In December 2014, the VA psychiatrist identified the Veteran as having unspecified depressive disorder, panic disorder, alcohol use disorder and tobacco use disorder. The VA psychiatrist suggested that the Veteran have individual therapy once every two months and take medication. See CAPRI. The Veteran was afforded a VA examination in October 2015. The VA examiner identified the Veteran as having major depressive disorder, generalized anxiety disorder, obsessive-compulsive disorder, panic disorder, alcohol use disorder, and cannabis disorder. However, the examiner found that the Veteran did not meet the DSM criterion for PTSD, specifically criterion B and criterion C. The VA examiner was asked whether the Veteran's acquired psychiatric disorders were related to service. The VA examiner concluded that the Veteran's acquired psychiatric disorders were less likely than not related to service. The VA examiner rationalized that "while, according to his report, Veteran does meet diagnostic criterion for major depressive disorder, generalized anxiety disorder, obsessive-compulsive disorder, and panic disorder, onset occurred more than one year after his discharge from the military in 1995 when he was 26 years old. Diagnoses were made based upon symptoms reported by the Veteran; however, Veteran appeared to be overreporting symptoms as symptoms he endorsed changed throughout the exam. For example, Veteran reported hearing auditory hallucinations, when asked what they say Veteran said, 'I can't remember. Nothing that stands out to me.' When asked about visual hallucinations reported seeing shadows, but 'only a handful of times, maybe 18 times.' Later said, 'Yeah, I see shadows all of the time.'" 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. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the October 2015 VA medical opinion that the Veteran's acquired psychiatric disorder is less likely than not related to service as probative medical evidence on this point. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. 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 has considered the lay statements of the Veteran regarding his psychiatric disorders. The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of any acquired psychiatric disorder during active service, or within a year of separation. 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 and the claim must be denied. In regard to PTSD, there is no diagnosis of PTSD and the Veteran is not competent to establish that he has PTSD. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include as secondary to status post endopyelotomy for right kidney ureter pelvic junction obstruction with hydronephrosis is remanded. The Board must remand this claim for further development. 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 Veteran was afforded a VA examination in October 2015. While the VA examiner made a finding regarding proximate cause, the VA examiner did not make a finding as to whether the Veteran's prostate cancer increased in severity, beyond its natural progress, proximately due to or the result of the Veteran's status post endopyelotomy for right kidney ureter pelvic junction obstruction with hydronephrosis. 38 C.F.R. § 3.310(b). In order to make a proper adjudication of this issue, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Return the Veteran's medical file to the October 2015 VA examiner. If it is not possible, return the Veteran's medical file to an appropriately qualified VA examiner. The VA examiner must answer: (a.) Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's prostate cancer is aggravated by his service-connected status post endopyelotomy for right kidney ureter pelvic junction obstruction with hydronephrosis. If the examiner finds that the prostate cancer is aggravated by the service-connected disorder, then he/she should quantify the degree of aggravation, if possible. A rationale for all opinions expressed should be provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.