Citation Nr: 21062721 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-07 724 DATE: October 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran did not have a valid diagnosis of PTSD. 2. The Veteran's other psychiatric diagnoses (excluding PTSD) were not incurred in and were not otherwise related to the Veteran's active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to May 1971. The Veteran passed away in May 2019. The Appellant is the Veteran's surviving spouse and has been substituted as claimant. See 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2018 decision, the Board, in pertinent part, reopened the claim for service connection for PTSD but denied the claim for an acquired psychiatric disorder, to include PTSD, on the merits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claim (Court). In a January 2020 Joint Motion for Partial Remand (JMPR), the parties requested that the Court vacate the portion of the Board decision that denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In February 2020, the Court granted the JMPR and returned it to the Board for further action consistent with the JMPR. Specifically, the parties agreed that an adequate reason and bases are required for determining the credibility of the evidence, to include the Veteran's lay statements, and for determining whether the Veteran was entitled to a VA psychiatric examination or opinion. The Board subsequently remanded the claim in October 2020 for obtaining a VA medical opinion. Having reviewed the evidence of record, the Board finds there has been substantial compliance with the previous Board remand instructions, as an adequate VA opinion has been obtained. Stegall v. West, Vet. App. 268, 270-71 (1998). Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304 (f). For the purposes of establishing service connection, medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125 (a), which mandates that all mental disorder diagnoses must conform to the applicable edition of the Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. § 3.304 (f). Effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders, including PTSD, and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. The provisions do not apply to claims that have been certified for appeal to the Board or are pending before the Board, the Court, or Federal Circuit, even if such claims are subsequently remanded to the AOJ. VA adopted as final, without change, the interim final rule, effective March 19, 2015. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Prior to passing away, the Veteran had identified two in-service stressors that he believed caused his claimed acquired psychiatric condition, to include PTSD: "black outs. Was given medical discharge" and "watch a man being shot in my company in army unit." He had also alleged receiving treatment at Philadelphia VAMC. At issue is whether the Veteran had a diagnosis of PTSD. Most recently, the Board remanded for obtaining a new medical addendum opinion addressing the nature and etiology of any acquired psychiatric disorder, to include PTSD. The Veteran did not allege and the evidence does not show that the Veteran was diagnosed with PTSD during service; that he engaged in combat with the enemy and his claimed stressors are related to that combat; that his claimed stressors are the result of fear of hostile military or terrorist activity; or that he was a prisoner-of-war and his claimed stressors are a result of this experience. 38 C.F.R. § 3.304 (f); see also 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304 (d) (pertaining to combat Veterans). Consequently, the Veteran's lay testimony or statements (made prior to his death), alone, are not sufficient to establish the occurrence of the claimed stressors, and his statements must be corroborated by credible supporting evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the Veteran's statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Such corroborating evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. In this case, the Veteran's service treatment records do not show diagnosis or treatment for any acquired psychiatric conditions, to include PTSD, but an April 1971 service treatment record provides a diagnosis of psychogenic disorder. His April 1971 and May 1971 service treatment records also document that he had "black outs" and passing out spells. The Veteran was medically discharged from service due to a seizure disorder, but his psychiatric evaluation was otherwise normal. See April 1971 medical board proceeding report. The Veteran did not submit sufficient corroborating evidence to support any of his alleged in-service stressors. The Board has reviewed the Veteran's service treatment and personnel records, none of which substantiate any of his claimed stressors. In response to the Veteran's reported stressors, a September 2015 Formal Finding of Evidence to Verify Stressor was issuedin which the RO determined that the information provided by the Veteran was insufficient to send to the JSRRC and the procedures to obtain the necessary information had been properly followed and that the events described by the Veteran were insufficient to send to JSRRC or attempt further research. The RO also noted that it asked for additional detail regarding the Veteran's stated stressors, which resulted in no additional information, and concluded that the Veteran's stressors were deemed to be too vague or otherwise incapable of being verified. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). Since the most recent Board remand, a VA medical addendum opinion was obtained in April 2021. The VA examiner opined that the Veteran did not meet the diagnostic criteria to support a diagnosis of PTSD. Even after acknowledging the Veteran's alleged in-service stressor events and further noting each individual's clinical experience of a stressor event being different, the examiner first indicated that witnessing someone shoot themselves in the foot to get out of service is unlikely to meet the standards relating to a criterion A stressor as defined in the DSM-5, and also pointed out that such description (of in-service stressor events) was noted only in the Veteran's claim document and in a lone medical note entered shortly after his filing of the claim, in which the medical provider indicated no "index trauma" or other symptoms present to properly diagnose a trauma or stressor related disorder, such as PTSD (the April 2021 VA examiner also referenced the Veteran's initial psychiatric consult from June 2015, in which the Veteran reported the in-service stressor events, but noted to have asked "whether he had PTSD and stat[ed] that he is applying for disability and asked repeatedly if this exam would help his claim"). The examiner further highlighted multiple PTSD screenings conducted at numerous points (from 2006 to 2019; with each screening questionnaire assessing also for nightmares), all showing negative findings for PTSD, and underlined that the only medical record mentioning nightmares described the Veteran's dream as "falling," and not having anything to do with the alleged trauma of witnessing a fellow soldier's self-inflicted gun woundand added that while nightmares of trauma do not explicitly need to be characterized as directly reliving the experience, they do tend to be more related to specific event than a simple statement of nightmares involving "falling." With regards to the one and only instance in which concern for PTSD was indicatedalmost 40-50 years post-separation (noted to have been performed by an LPN in 2006), the examiner indicated that the symptoms descried therein were not consistent with the claims made later or symptoms later reported to be related to the claim of PTSD/nightmares relating to trauma, and further stated that a behavioral health lab structured telephone screening note that suggested further workup for PTSD was provided without any diagnosis of PTSD. With regards to the "psychogenic disorder" and the episodes of black outs/passing out documented in the Veteran's service treatment records, the examiner explained that such were "clearly referring to the Veteran's possible non-epileptic causes for what appeared to be seizure-like activity," specifically pointing out that there was a related comment in that same record that the "symptoms were compatible with tension headaches," which was later diagnosed as a seizure disorder per evaluations/EEGs; the examiner further pointed out that there was no specifically identifiable stressor or traumatic event that could have been causally associated with a psychogenic basis for seizure-like activity based on contemporaneous records. The examiner ultimately opined that "these facts, taken in the context of multiple disability applications without claims of mental illness in the past prior to the more recent claims for PTSD and nightmares, it is less likely than not that the Veteran had a diagnosis of PTSD or that a criterion A stressor had in fact that resulted in PTSD-related symptoms from occurrences during his time in service." The Board assigns the most probative value to this opinion, as this was furnished after extensive review of all pertinent records, to include his service treatment records and VA/private treatment records, and was substantiated by concrete factual findings. As briefly addressed in the April 2021 VA medical opinion, October 2006 VA treatment records indicated concerns for PTSD and anxiety based on a self-report structured telephone interview, but even during that time, no specific stressors or traumatic experiences were noted, nor any diagnosis of PTSD provided based on such evaluation. In a preceding note from September 2006, authored by LPN, a PTSD screen was given, and in that instance, the Veteran denied nightmares or intrusive thoughts, but affirmatively responded to questions regarding avoidance, hypervigilance and dissociation symptoms. To the extent that a diagnosis of PTSD is noted within the Veteran's treatment records, it is based exclusively on the Veteran's self-reported history of PTSD treatment, and is not probative evidence in this determination. In other words, the VA clinicians did not independently conclude a diagnosis of PTSD was appropriate, but instead merely noted the diagnosis based on the history, albeit inaccurate, provided by the Veteran. Furthermore, as noted in the VA examination, the Veteran was consistently found not to have PTSD per PTSD screening notes. The Veteran was not competent to diagnose himself with PTSD. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify."). Given the above, the Board finds the claims file is without competent evidence of a diagnosis of PTSD within the appeals period upon which to predicate a claim of service connection. Having failed to establish a valid diagnosis of PTSD and/or any corroborating evidence of his alleged in-service stressors, the Veteran's claim of entitlement to PTSD must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for PTSD, the benefit-of-the-doubt doctrine has no application. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to non-PTSD acquired psychiatric disabilities, the Board notes that the Veteran was diagnosed with various conditions, to include depression and adjustment disorder, during the appeal period. As noted earlier, his service treatment records do not include any relevant complaints, symptoms, treatment, or diagnosis relating to an acquired psychiatric disorder. There are complaints of "dizziness" accompanied by "black outs" and/or "blurred vision" that had been ongoing for a year (see April and May 1971 service treatment records), and an electroencephalogram (EEG) test from April 1971 showing a questionable seizure activity and a diagnosis of a "psychogenic disorder" and seizures, but a "seizure disorder" was noted to have existed prior to his service (as noted in the separation examination), and his psychiatric evaluation at the April 1971 Medical Board examination was otherwise normal. His October 2006 post-service treatment records reference concerns for anxiety, but no specific traumatic/stressor experiences were noted, and no specific diagnoses were provided based on the evaluation. His initial psychiatric consultation conducted in June 2015 includes the Veteran's report of his in-service stressor events, but he was not otherwise diagnosed with any trauma/stressor related psychiatric condition during that time. His treatment records document the onset of his acquired psychiatric conditions 40-50 years after separating from service (ie. November 2018 VA treatment records; January 2021 VA homelessness/shelter placement discussion note). There is only one medical nexus opinion of record concerning his acquired psychiatric conditionApril 2021 VA medical nexus opinion. After reviewing all pertinent records and acknowledging the prior diagnoses of depression and adjustment disorders in 2021, the examiner furnished a negative medical nexus opinion. As extensively discussed above, regarding his in-service documentation of a diagnosis of psychogenic diagnosis and complaints of black-outs/passing out spells, the examiner explained that such were related to his seizure disorder, and not related to an acquired psychiatric disorder, as evidenced by his later EEG/evaluation documented in his service treatment records. With regards to the "hysterical personality" documented in a November 1971 VA 10-1000 form, the examiner pointed out the same note stating, "it was felt a psychiatric consultant that [the Veteran's] symptoms were compatible with tension headaches and attempts to get attention," suggesting no association between such documentation and the Veteran's acquired psychiatric condition. In support of the negative nexus opinion, the examiner also emphasized there being no psychiatric symptoms noted in his voluminous depression screening notes, as well as documentations of a late onset of his acquired psychiatric conditionsie. a long gap between his separation from service and his subsequent diagnosis provided for his acquired psychiatric conditions (ie. November 2018 VA treatment records indicating the onset of his major depressive disorder as June 2015, and him noting to have an adjustment disorder in 2021, per a January 2021 VA homelessness/shelter placement discussion note)all of which tend to weigh against a finding that his acquired psychiatric condition was incurred in or otherwise related to his active duty military service. The Board assigns the most probative value to this opinion, as this was furnished after extensive review of all pertinent records, to include his service treatment records and VA/private treatment records, and was substantiated by concrete factual findings. The Board acknowledges the Veteran's belief relayed prior to his death that his psychiatric condition was related to the alleged in-service incidents. Although the Veteran was competent to testify as to events that occurred in service as well as his symptoms, he was not competent to conclude that his psychiatric condition was related to service, as the etiology of psychiatric conditions is complex and generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran did not state, and the record does not reflect, that he had any medical education, experience, or training, nor had he offered any basis in common lay knowledge to support his opinion regarding medical etiology. Thus, at least with regards to establishing the medical etiology, the Board does not assign any probative value to the Veteran's statements. There is only one opinion of record and it is against the claim. In summary, the preponderance of the evidence is against finding that the Veteran's psychiatric condition was related to his military service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Thus, the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.