Citation Nr: 21070726
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 15-45 669
DATE: November 24, 2021

ORDER

Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied.

REMANDED

Entitlement to an increased rating for unspecified depressive disorder, currently rated as 30 percent disabling, prior to October 8, 2019, and as 100 percent disabling, thereafter, is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDING OF FACT

The preponderance of the competent evidence of record is against finding that the Veteran has had PTSD at any time during or proximate to the pendency of the claim.

CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from October 2000 to March 2002.

These matters were before the Board in March 2021 when they were remanded for additional development.

Service Connection for PTSD

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

VA regulations provide that service connection for PTSD requires medical evidence of a PTSD diagnosis in accordance with DSM-5. 38 C.F.R. § 3.304 (f). Neither the Veteran's service treatment records (STRs) nor her post-service medical records contain a diagnosis of PTSD under these provisions. The Veteran underwent a VA examination in May 2021. The examiner opined that while the Veteran had a diagnosis of depressive disorder (for which she has been awarded service connection), her symptoms did not meet the criteria for a diagnosis of PTSD under DSM-5. See May 2021 VA Initial PTSD Disability Benefits Questionnaire. No medical evidence to the contrary has been presented. In the absence of a PTSD diagnosis, service connection for PTSD is unavailable. 38 C.F.R. § 3.304 (f); Brammer, supra.

While the Veteran filed a claim for service connection for PTSD, she is not competent to provide a diagnosis in this case. PTSD is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that medical testing and other specific findings are needed to properly assess and diagnose the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) Consequently, the Board gives more probative weight to the competent medical evidence which shows that, for the entire period of the claim and the years preceding, the Veteran has not had a diagnosis of PTSD.

Thus, the Board must conclude that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz, supra.

REASONS FOR REMAND

Increased Rating for Unspecified Depressive Disorder 

The Veteran seeks an increased rating for her service-connected unspecified depressive disorder, which is currently rated as 30 percent disabling, prior to October 2019, and as 100 percent disabling, thereafter.

As noted in the March 2021 remand, a January 2021 rating decision notified the Veteran that a reduction in the rating for her depressive disorder from 100 percent to 30 percent was proposed; however, a rating decision implementing a reduction had not yet been issued. A decision regarding the reduction would significantly impact the Veteran's pending appeal for entitlement to an increased rating for her depressive disorder. As the increased rating and rating reduction issues are inextricably intertwined, the Board remanded the increased rating issue so that the agency or original jurisdiction (AOJ) a rating decision implementing the proposed reduction.

To date, the AOJ has not yet issued a rating decision implementing the proposed reduction (or continuing the current staged rating) as instructed by the Board's remand. Notably, an August 2021 supplemental statement of the case confirms that a "final determination as to whether the condition will be finally reduced or not will be addressed in a separate decision." Therefore, a remand is required for the AOJ to comply with the Board's March 2021 directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

TDIU

Consideration of the TDIU claim is dependent upon the impact of the Veteran's service-connected disabilities on her ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's increased rating claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required.

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The matters are REMANDED for the following action:

Issue a rating decision either implementing a reduction in the Veteran's rating for her unspecified depressive disorder or continuing her current staged ratings.

 

 

D. SMART

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fletcher, Kathleen

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.