Citation Nr: 21066656 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-38 530 DATE: November 1, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for an acquired psychiatric disorder other than PTSD. A total disability rating based on individual unemployability due to service-connected disability (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from February 1983 to August 1985. 2. A confirmed diagnosis of PTSD related to a confirmed inservice stressor has not been shown. CONCLUSION OF LAW PTSD was not incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board remanded the issues in August 2018 and January 2021 for additional development. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not show that the Veteran has a confirmed diagnosis of PTSD. Rather, the medical evidence shows only a "rule/out" diagnosis in the VA treatment records. Further, the August 2019 and March 2021 VA PTSD examinations both reflect that the Veteran did not meet the full criteria for a diagnosis of PTSD. While an October 2017 private psychological report authored by Dr. B. reflected a diagnosis of PTSD, it was not accompanied by any corresponding private treatment records showing diagnosis and treatment for PTSD despite the Veteran being requested to provide information and consent to authorize VA to obtain all private treatment records. Parenthetically, the Veteran only submitted consent and authorization for VA to obtain records from the Department of Corrections, which were sought but a negative response was received. VA informed the Veteran in an August 2019 letter that these records were unavailable. Moreover, while Dr. B. indicated in his report that he had treated the Veteran, it was not stated that he treated the Veteran for PTSD. In fact, Dr. B. opined that review of the records established the diagnosis of PTSD, not that examination and evaluation of the Veteran resulted in the PTSD diagnosis. The disability benefits questionnaire submitted by Dr. B. reflected only a diagnosis of depressive disorder, which Dr. B. stated "coexists with PTSD." Dr. B. noted that neuropsychological testing was administered, but did not indicate what type of testing it was. Further, even assuming a valid diagnosis of PTSD, Dr. B. failed to acknowledge or account for the fact that there were statements made by the Veteran to VA medical professionals which completely undercut the claimed inservice stressor. Finally, Dr. B. did not provide any rationale for the stated opinion. As such, the Board affords little probative value to this opinion. In this regard, a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). With regard to the claimed inservice stressor, the Veteran indicated that he was personally assaulted in service; however, the post service VA treatment records do not support this contention. Notably, while an April 2008 VA treatment record noted a positive screening test for military sexual trauma, a May 2008 VA treatment record stated that he denied any stressful event during service. Another May 2008 VA treatment record indicated that the Veteran reported emotional stress from an inability to find work in previous work of data processing due to his criminal record. An April 2009 VA treatment record reflected his report that he left service early because he did not get along with his superior. It was also noted that he was hopeless about the future because he had no job, no money, and served on active duty for over 2 years and received no pension for it. Another April 2009 VA treatment record stated that the Veteran was attracted to males ages 12 to 14. He was reportedly not sexually active and had no problem controlling his desire. A May 2009 VA treatment record stated that he had difficulty getting along with others in service. A March 2011 VA treatment record stated that the Veteran admitted that he was sexually active at age 17 with a male partner in service and that afterwards he became very closeted about this until recently. He did not describe discrete flashbacks or specific trauma per se from this incident, although he wondered if this could qualify for sexual trauma and therefore help him obtain service connection for PTSD as a friend suggested he may consider. He indicated that he was finally accepting that he was gay. VA treatment records from April 2011 and March 2012 indicated that he reported military sexual trauma. The March 2012 VA treatment record noted that he said he was depressed since he was a teenager. An April 2012 VA treatment record noted that the Veteran had a better understanding of how much he hurt the 14 year old with whom he had sexual relationship (the crime for which he went to prison). He stated that that his military sexual trauma was mildly traumatic for him. A March 2019 VA psychiatric consultation noted that the Veteran had a history of a relationship with a minor and spent time in prison. Due to this experience, it was noted that he felt traumatized, which made it difficult for him to socialize. He said he would like to start a relationship with an adult female partner. While the Veteran received nonjudicial punishment in March 1985, July 1985, and August 1985 while on active duty and he was recommended for early separation due to unsatisfactory performance, the August 2019 VA examiner noted, and the VA treatment records showed, that he had a history of significant problems before he joined the service. Specifically, he reported having been disciplined for truancy at age fifteen. He also reported illicit drug use and committing petty crimes in high school that led to his expulsion. Further, the August 2019 VA examiner noted that the Veteran's treating physician indicated that the difficulties in the Army were a continuation of past behavior, which showed difficulty in respecting and obeying the law. In addition, the VA examiner pointed to the March 2011 VA treatment record which noted that he reported being sexually active with a male partner in service at age 17 and asked his health care provider if this would qualify as sexual trauma for the purpose of claiming service connection for PTSD. He then reported that he finally accepted being gay. As such, the medical evidence weighs against a finding of a confirmed diagnosis of PTSD in accordance with the DSM-V which is related to an inservice stressor. The Board has considered the Veteran's lay statements that his symptoms amount to a PTSD diagnosis which is related to an inservice sexual assault. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the diagnosis or etiology of his current disorder due to the medical complexity of the matter involved. Moreover, for the above listed reasons, the VA treatment and examination report evidence is more probative regarding a confirmed diagnosis of PTSD which meets the DSM-V criteria than the October 2017 private psychological assessment, and the totality of the medical evidence does not support a confirmed inservice stressor. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for PTSD. The benefit of the doubt doctrine is not for application with regard to this claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the prior remands, in part, instructed the AOJ to obtain the Veteran's Vocational Rehabilitation file. However, a May 2021 correspondence in the record indicated that there was no Vocational Rehabilitation file of record for the Veteran. Therefore, the remand instructions have been complied with on this point. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As to a psychiatric disorder other than PTSD, in the January 2021 remand the Board instructed the RO to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's unspecified depressive disorder and unspecified anxiety disorder because the August 2019 examiner indicated that it was at least as likely as not that the psychiatric disorders had their onset during service, but the explanation/rationale completely undercut the stated opinion. The January 2021 VA opinion report contains the exact same opinion (verbatim) as the August 2019 opinion report. The clinician opined that it was at least as likely as not that the psychiatric disorders had their onset during service, but the explanation/rationale completely undercut the stated opinion. Further, the clinician provided no opinion as to whether it was at least as likely as not that the diagnosed psychiatric disorders were the result of disease or injury in service, to include notations of disciplinary actions in service. As the Veteran currently has no service-connected disability, the issue of TDIU is inextricably intertwined with the service connection issue being remanded. Thus, the adjudication of the TDIU issue must be deferred pending the development requested on remand of the service connection issue on appeal. The matter is REMANDED for the following actions: 1. Direct the claims file to a clinician. Based on a review of the file, including the Veteran's lay statements, the clinician is asked to provide a medical opinion as to the following: Is it at least as likely as not that the Veteran's psychiatric disorders had their onset in service, or are otherwise the result of a disease or injury in service, to include notations of disciplinary actions in service? All opinions expressed must be accompanied by a complete rationale. The clinician is asked to take a fresh look at the file as the August 2019 and January 2021 opinions are internally inconsistent and not adequate for adjudication of the claim. 2. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.