Citation Nr: 21069755 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-18 168 DATE: November 19, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Service connection for residuals of a concussion is denied. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current disability of an acquired psychiatric disorder, to include PTSD, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. 2. The Veteran did not incur a concussion in service and, thus, does not currently have residuals thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125(a). 2. The criteria for service connection for residuals of a concussion have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2014 by a Department of Veterans Affairs (VA) Regional Office. In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2019, the Board remanded the claims for additional development and they now return for further appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 2. Entitlement to service connection for residuals of a concussion. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), 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). An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen, 7 Vet. App. 439; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). However, VA requires a diagnosis that conforms to the DSM-5 to compensate for a psychiatric disability, therefore constraining the application of Saunders in the context of claims for service connection for psychiatric disabilities. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020); 38 C.F.R. § 4.125(a). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, and residuals of a concussion, to include headaches, as a result of a personal assault that occurred while he was stationed in Thailand. In this regard, he reports that he was attacked by a group of civilians near the border of Laos, Cambodia, which resulted in damage to his right testicle, loss of consciousness, and loss of teeth in November 1968. However, the Veteran's service treatment records are silent to any complaints, treatment, or diagnosis referable to an assault, to include damage to the right testicle, loss of all teeth except two, a concussion, or an acquired psychiatric disorder. Additionally, his dental records do not show the loss of teeth in service, and, at his April 1969 separation examination, he denied currently or previously experiencing frequent or severe headaches, severe tooth or gum trouble, a history of a head injury, periods of unconsciousness, and all psychiatric symptoms, and clinical evaluation of all relevant systems was normal. Similarly, while the Veteran's service personnel records reflect that he was stationed in Thailand from May 1968 to May 1969, such are likewise negative for any evidence of an in-service assault. The Board also notes that post-service treatment records dated in 1972 reflect the Veteran's report of being kicked in the genitals in 1970; however, as such occurred after his military service, the Agency of Original Jurisdiction (AOJ) denied service connection for injury to the right testicle with atrophy on numerous occasions. Moreover, in an attempt to verify the Veteran's in-service assault, the AOJ contacted the Joint Services Records Research Center (JSRRC) in June 2020. In July 2020, JSRRC reported that such was temporarily closed due to COVID-19 and was migrating to the Veterans Benefits Administration (VBA) Records Research Center (RRC); however, the RRC likewise did not have access to the relevant records at the current time. Thus, the AOJ was advised to resubmit the request through the VBMS Record Research Requests tab and, once RRC resumed operations, a status update would be provided. Thereafter, in September 2021, RRC reported that the request was unable to be researched as a researchable stressor event/incident was not provided. In this regard, such is noted to require: a stressor that can be documented, the location where the incident took place, the approximate date (within a two-month period) of the incident, the unit of assignment at the time the stressful event occurred, and, if the stressor refers to a casualty, the full name and unit designation of the casualty. While the Veteran's representative argues in his October 2021 Informal Hearing Presentation that the Veteran should be provided further opportunities to provide information regarding his claimed in-service assault, the Board finds that all efforts in such regard have been exhausted as he has been requested to provide such information in November 2011, October 2019, and June 2020 letters and at the August 2018 Board hearing. Consequently, based on the foregoing, the Board finds that the Veteran did not incur a concussion in service and, thus, service connection for residuals thereof is not warranted. In this regard, the Board finds that his report of an in-service assault resulting in a concussion is contradicted by the contemporaneous evidence of record, to include his own statements at the time of his April 1969 separation examination and official service department records. Thus, in light of such fact, the Board finds that the Veteran is not credible in regard to his report of an in-service assault resulting in a concussion. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility). Therefore, as the Veteran did not incur a concussion in service, he does not currently have residuals thereof and, thus, service connection for such claimed disorders is not warranted. Furthermore, post-service VA treatment records are silent to any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder, to include PTSD. Rather, VA treatment records indicate that PTSD screenings performed in November 2011 and November 2018 were negative. Furthermore, at an October 2019 VA examination, the examiner determined that the Veteran did not meet the diagnostic criteria for PTSD and did not have a mental disorder that conforms with the DSM-5 criteria. In this regard, the examiner noted the Veteran relates his current complaints as related to physical ailments, but denied symptoms of anxiety, depression, sleep impairment and explicit PTSD criterion. Additionally, the Veteran reported and described current healthy behaviors, to include volunteer work, taking care of family members and community members. Accordingly, the examiner determined that the Veteran did not report or endorse clinically significant symptoms of PTSD. Upon review, the Board affords great probative weight to the medical evidence of record, to include the October 2019 VA examination, as such reflects findings rendered by trained medical professionals. Moreover, the October 2019 VA examination was conducted by a psychologist who has specialized training in diagnosing psychiatric disorders. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Conversely, the Board affords no probative weight to the Veteran's self-report of a current psychiatric disorder as he, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of such disorder involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board affords the Veteran's statements as to a diagnosis of an acquired psychiatric disorder no probative weight. Consequently, the Board finds that at no time during the pendency of the claim did the Veteran have a disability of an acquired psychiatric disorder, to include PTSD, and the record does not contain a recent diagnosis of disability prior to his filing of a claim. Thus, service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. Watson, supra; Brammer, supra; Rabideau, supra. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, and residuals of a concussion. As such, that doctrine is not applicable in the instant appeal, and such claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.