Citation Nr: 21071433 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-39 000 DATE: November 30, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. An acquired psychiatric disorder, to include PTSD, was not manifest to a compensable degree within one year of his discharge from active service. 2. The weight of the medical and other evidence of record is against a finding that the Veteran has an acquired mental disorder, to include PTSD, that had its onset in service or is otherwise related to a disease or injury during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306, 3.307, 3.309, 3.310, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from April 1983 to June 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's appeal was previously remanded in October 2018 and February 2021, and now returns to the Board for further consideration. In his November 2014 substantive appeal, the Veteran requested a hearing at a local VA office. One was scheduled for him in February 2017; in the weeks before this scheduled hearing, he requested that it be rescheduled. The hearing was rescheduled for November 2017, but the Veteran failed to appear, and has not shown good cause for not appearing. Accordingly, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: 1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., it conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM) Fifth Edition, American Psychiatric Association; 2) credible supporting evidence that the claimed in-service stressor occurred; and 3) a link, established by medical evidence, between the current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See generally 38 C.F.R. § § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that his PTSD caused or aggravated beyond its natural progression by his military service. Specifically, in November 2010 and May 2011 statements, and his April 2014 Notice of Disagreement, the Veteran asserts that his PTSD was aggravated by his military service. To that end, 38 U.S.C. § 1111 holds that "[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service." When no pre-existing condition is noted upon entry into service, as is the case here with the Veteran's October 1982 Report of Medical History and Report of Medical Examination showing no preexisting diagnosed acquired psychiatric disability, the burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. VA may also show a lack of aggravation by establishing that there was no increase in disability during service or that "any increase in disability [was] due to the natural progress of the" pre-existing condition, per 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under Section 1111, the veteran's claim is one for direct service connection. See Wagner v. Principi, 370 F.3d 1089, (2004). While the September 2021 examining psychologist determined "it is at least as likely as not that PTSD existed prior to the Veteran's entry into military service," the examiner correctly pointed out that the Veteran did not have an "official diagnosis of PTSD [] prior to 2010." Thus, with no clear and unmistakable evidence that the Veteran's PTSD existed prior to service, the presumption is not rebutted, and the claim converts to one for direct service connection. The evidence reflects a current PTSD diagnosis. The September 2021 VA PTSD examiner noting a current diagnosis of PTSD. May 2010, August 2010, October 2010, December 2010, and March 2011 private medical records for the Veteran indicate that he was diagnosed with PTSD in 2010 due to "child sexual abuse" and "inadequate childcare" from his father and stepmother. A February 2011 VA treatment note also documented the Veteran's report that his stepmother "sexually abused him 'to get back at [Veteran's] father." Further VA treatment records later in 2011 and the beginning of January 2012 show diagnoses of "civilian PTSD." Regarding direct service connection, the Veteran alleged several incidents during service that he asserts contributed to his PTSD. Lay statements provided by the Veteran include a report during the September 2021 VA examination, that he was in "Beirut, Lebanon during the October 23, 1983 blast, where he reportedly witnessed hundreds of Marines killed and was responsible for the clean-up of dead bodies after the explosion." The Veteran was separated from the Marine Corps on June 16, 1983 and was not in the Marine Corps on October 23, 1983. While no doubt distressing to the Veteran following his Marine Corps service, this event occurred after his separation from active duty and thus is not an event during military service. Buchanan. Other events during service the Veteran asserted as contributing to his PTSD include "being discharged against his will" and being "drugged by doctors" during service. The September 2021 VA examiner determined that the Veteran's PTSD condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In arriving at her opinion, the September 2021 VA examiner found: "While it is the examiner's opinion that the Veteran has a diagnosis of PTSD (and Major Depressive Disorder, Recurrent, Mild), this condition is attributable to the Veteran's childhood sexual trauma and not to an event that occurred during the Veteran's military service. The claimed in-service events, according to the Veteran's Statement in Support of Claim (May 2, 2011; July 24, 2011), his pre-existing PTSD was aggravated by being 'discharged against my will.' This event does not qualify for Criterion A of PTSD and is thereby not something that would contribute to a PTSD diagnosis. The Veteran also claimed that he was 'drugged by doctors" and reiterated that claim today, but there is no evidence that there was ill intent by the treating doctors in the records available for review." The Veteran's stated claim of being 'discharged against my will' from the USMC, secondary to a lower back condition called spondylosis, as an aggravating factor of the pre-existing PTSD does not meet Criterion A for PTSD and is thereby not considered an aggravating factor. The Veteran also claimed that he was 'drugged by doctors,' but there is no evidence in available documents that he was 'drugged' in a manner other than being prescribed medication for his in-service diagnosed conditions. After review of the entire appellate record, the Board assigns more probative weight to the contemporaneous medical evidence, including private and VA medical treatment and the VA examination, which attribute the Veteran's mental health condition to events outside of his military service. The opinion rendered by the September 2021 VA medical examiner is especially probative as it is based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's lay assertions that he believes his current psychiatric disorders are related to service, and the Board is sympathetic to the Veteran's claim. However, the Veteran, as a lay person, is only qualified to report his lay-observable symptoms, and not diagnose his own medical conditions. Compare Davidson v. Shinseki, 581 F.3d 1313 (2009), with Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board has considered the other diagnosed acquired mental health condition, namely the major depressive disorder noted by the September 2021 VA examiner. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, as noted above, this examiner also provided a negative nexus with respect to the relationship between that major depressive disorder diagnosis and the Veteran's military service. The record does not reflect other non-PTSD acquired psychiatric disabilities have been diagnosed. Accordingly, service connection for an acquired psychiatric disorder other than PTSD is also not warranted. The overall weight of the evidence is against a finding that the Veteran has a mental health condition, to include PTSD, that is etiologically related to military service. Therefore, service connection for an acquired psychiatric disorder, to include PTSD, is not warranted, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.