Citation Nr: 21071805 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-03 434 DATE: December 1, 2021 ORDER Entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran is not shown to have (or during the pendency of this claim to have had) an acquired psychiatric disability other than his nonservice-connected PTSD. CONCLUSION OF LAW Service connection for a psychiatric disability other than PTSD is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1965 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2012 Department of Veterans Affairs (VA) rating decision. In October 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In May 2016, January 2020, and June 2021, this matter was remanded for additional development. The issue is characterized as stated above because the January 2020 Board decision denied service connection for PTSD based on their being no credible evidence that an alleged stressor in service (underlying a diagnosis of PTSD) occurred. See January 2020 Board decision, page 6. The Veteran did not appeal that decision and it became final as to the matter of service connection for PTSD. 38 U.S.C. § 7104. While a claim of service connection for a mental disorder is generally a claim of service connection for any psychiatric disability however diagnosed, (see Clemons v. Shinseki, 23 Vet. App. 1 (2009)), under Clemons, this case is distinguished because a final Board decision denied service connection for PTSD (requiring a supplemental claim and receipt of new and material evidence to reopen the claim before service connection for such diagnosis may be considered de novo) and remanded the remaining matter of service connection for a psychiatric disability other than PTSD (which warrants de novo review, as discussed below). Therefore, the Board finds no reason to expand the issue to encompass the diagnosis of PTSD, as argued. See Clemons, 23 Vet. App. 1. Accordingly, the scope of this appeal is limited to consideration of service connection for a psychiatric disability other than PTSD. At the outset, the Board finds there has been substantial compliance with its May 2016, January 2020, and June 2021 remand directives pertaining to this matter. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) a disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the already service connected disability caused or aggravated the disability for which service connection is sought. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of, or overlapping with, the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The January 2020 Board decision denied service connection for PTSD and for colon cancer, and remanded the matter of service connection for a psychiatric disability other than PTSD. Unlike with a claim of service connection for PTSD, substantiating a claim of service connection for other psychiatric diagnoses does not necessarily require credible corroborating evidence of a specific stressor event in service. The Veteran's STRs contain no mention of complaints, diagnosis or treatment pertaining to a psychiatric disability. On September 24, 1968 service separation examination (in San Diego, CA), psychiatric clinical evaluation was normal. On August 2014 VA examination, persistent depressive disorder in accordance with the DSM-5 criteria was diagnosed. The provider noted that the Veteran's self-reported symptoms are consistent with diagnosed persistent depressive disorder for most of the prior 10 years with moderate increase in chronic symptoms in the last 5 years. The examiner opined Veteran's reported symptoms do not meet the criteria necessary for a diagnosis of PTSD, most significantly in that he reported index military traumatic events that failed to meet the threshold for Criterion A. At the October 2015 Board hearing, the Veteran, via his representative, indicated that he had many anger issues and negative memories of service upon returning from Vietnam. He also asserted he had a psychiatric disability secondary to his physical conditions, to include colon cancer and diverticulitis. A May 2019 Behavior Heal Lab record notes the Veteran was seen for complaints that were considered possibly being consistent with diagnoses including major depression and moderate to severe anxiety (as well as PTSD and at-risk drinking). On August 2019 VA examination, PTSD with depressed and anxious features in accordance with the DSM-5 criteria was diagnosed. The examiner opined that it was at least likely as not that the Veteran's PTSD is related to service. On February 2020 VA examination, PTSD was diagnosed; the Veteran had alleged military sexual trauma. The examiner found the Veteran did not have any other mental health disorder. In an August 2021 VA medical advisory opinion (pursuant to the June 2021 Board remand), the consulting psychologist reviewed the record opined the previously diagnosed depressive symptoms were subsumed within the diagnosis of PTSD rather than a separate and distinct diagnosis. The provider observed the Veteran previously had diagnoses of persistent depressive disorder and multiple exams diagnosing PTSD since then; the August 2014 exam indicated that he did not have an index trauma that met criteria A of PTSD; and subsequent exams have found an index trauma indicating that he does meet the criteria for a diagnosis of PTSD. The consulting provider noted the August 2014 examination did not find symptoms associated with PTSD since the examiner did not accept the Veteran's stressor sufficient to support a PTSD diagnosis. The Veteran claims that he has a psychiatric disability other than PTSD is related directly to his service, or in the alternative, is secondary to his colon cancer and/or diverticulitis. As colon cancer and diverticulitis are not service connected, the secondary service connection theory of entitlement lacks legal merits. 38 C.F.R. § 3.310 (a). The analysis proceeds to whether the Veteran has an acquired psychiatric condition, other than PTSD, that may nonetheless be etiologically related directed to his service. At the outset, it is again noteworthy that the January 2020 final Board decision denied service connection for PTSD essentially on the basis that a stressor event in service, corroborated by credible supporting evidence, was not shown, and that since that decision no additional (new and material) evidence bearing on the occurrence of a stressor event has been received (so readjudication of service connection for PTSD is not for consideration). The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a psychiatric disability other than PTSD. See 38 U.S.C. § 1110. While persistent depressive disorder was diagnosed on August 2014 VA examination, the August 2021 VA consulting provider opined that the depressive symptoms are a manifestation of PTSD rather than a separate and distinct disability. She observed that multiple examinations diagnosed PTSD and, while the August 2014 VA examination did not diagnose PTSD, the 2014 examiner declined to diagnose PTSD due to the lack of a qualified criteria A stressor. The 2021 consulting provider opined that the described depressive symptoms are subsumed within the PTSD diagnosis. The Board finds the opinion by the August 2021 VA consulting provider to be competent, and the most probative, evidence in this matter and persuasive. The opinion reflects a thorough review of the record, and includes rationale that cites to accurate factual data. The Board acknowledges the Veteran's numerous statements asserting that he has a psychiatric disability related to his service. While he is competent to report he has had lay-discernible psychiatric symptoms, he is not competent to establish by his own opinion that the symptoms he has experienced represent a diagnosis of an acquired psychiatric disability other than PTSD. The diagnosis of a psychiatric disability is a medical question that is beyond the scope of general knowledge and incapable or resolution by lay observation; it requires medical training/expertise. See Jandreau, 492 F.3d 1372. The Veteran is a layperson and does not cite to an adequate supporting medical opinion or medical treatise evidence. The Board acknowledges the November 2021 written argument by the Veteran's representative, urging that the Board should apply Clemons and allow for service connection for PTSD. However, as stated above, Clemons does not apply when a claim is disallowed by a prior, final decision on one diagnosis based on competent medical evidence. He and his representative were informed of the January 2020 Board decision denying service connection for PTSD; did not appeal the denial; and, it is final as to that psychiatric diagnosis. 38 U.S.C. § 7104. Notably, the May 2016 Board decision already expanded a claim of service connection for PTSD under Clemons to include both PTSD and depressive disorder. Accordingly, the depressive disorder diagnosis is being considered as a separate (from PTSD) claim. See Clemons, 23 Vet. App. 1, at 9. In the absence of proof of a current diagnosis of an acquired psychiatric disability other than PTSD, there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. at 225; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999). Therefore, the preponderance of the evidence is against this claim. Accordingly, the benefit of the doubt rule does not apply; the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, Associate 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.