Citation Nr: 21073062 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-24 753 DATE: December 7, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, unspecified depressive disorder, and somatic symptom disorder, is denied. REMANDED Service connection for a low back disability, to include intervertebral disc syndrome and degenerate disc disease, is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. Service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The weight of the evidence of record is against finding that the Veteran has had posttraumatic stress disorder at any time during or approximate to the pendency of the claim. 2. The weight of the evidence is against finding that the Veteran's acquired psychiatric disorder, to include unspecified depressive disorder, and somatic symptom disorder, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW The criteria for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, unspecified depressive disorder, and somatic symptom disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1997 until his honorable discharge in June 2002. As relevant to this case, he also served in the United States Army Reserve until 2008, at which time he was discharged under "other than honorable conditions." This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and March 2016 decisions by a Regional Office of the United States Department of Veterans Affairs (VA). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. With respect to mental disorders, all such diagnoses must conform to the Statistical Manual of Mental Disorders (DSM-5) for purposes of having a current disability. 38 C.F.R. § 4.125(a). Service connection for posttraumatic stress disorder (PTSD) is governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the DSM-5, 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by the medical evidence, between current symptoms and an in-service stressor. Analysis 1. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, unspecified depressive disorder, and somatic symptom disorder, is denied. First element: A current disability under the DSM-5 "[A] clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor" because "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran submitted a psychological evaluation dated March 8, 2016, from a licensed psychologist. The psychologist did not diagnose him with PTSD, nor did she find any prior medical diagnosis of PTSD during the claim period. Instead, she diagnosed him with unspecified depressive disorder and somatic symptom disorder. The Veteran also submitted a private medical report dated August 27, 2015, from Dr. Y. who is a chiropractic doctor. Dr. Y. stated that "[the Veteran] has supporting military history and symptoms of PTSD which include, but are not limited to insomnia, sleep deprivation, anxiety, isolation, hyper vigilance, depression, and memory loss." He provided a provisional diagnosis of PTSD. The Board finds Dr. Y.'s medical diagnosis is not admissible as a chiropractic doctor is not competent to to render a diagnosis on a psychological disorder. The Board recognizes that the Veteran testified that in 2019 or 2020 he was seeing a counselor. August 2021 Board Hearing Transcript, at 14. He did not identify if this was in relation to a psychological issue or not. In fact, he testified that he had not been professionally diagnosed with PTSD. Id. at 11. Nevertheless, the Board held the record open for 30 days because the Veteran testified that he would obtain and submit those records. As of the date of this decision, the Board has not received any medical records related to a psychiatric disorder following the Board hearing. Pursuant to section 5103A of title 38, U.S. Code, as added by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, the Secretary is required to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a). Under section 5103A(b), the Secretary's duty to assist includes making reasonable efforts to obtain relevant records, so long as the claimant adequately identifies those records to the Secretary and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1). The Veteran's only statement about possible 2019 counseling records was at his Board hearing, and he did not identify where the counseling occurred, without whom, for how long, or any other relevant information. The Board finds his testimony is too general to be considered a request for help in obtaining documents. Nor did he provide any information that could be considered useful in adequately identifying the records. Therefore, the Board finds that the Veteran failed to adequately identify any missing medical records. 38 U.S.C. §§ 5103A(a), (b)(1). Accordingly, for purposes of service connection for an acquired psychiatric disability, the Board finds the Veteran has only been diagnosed with unspecified depressive disorder and somatic symptom disorder during the claim period; there is no diagnosis of PTSD. Second element: An in-service event, injury, or disease As the Veteran does not have a diagnosis of PTSD, the VA Regional Office was under no obligation to verify any claimed in-service stressors. To note, the VA Regional Office did send the Veteran appropriate correspondence asking him to identify his in-service stressors so that the VA Regional Office could attempt to corroborate them. The Veteran did not respond to the request. Despite no diagnosis of PTSD, service connection for non-PTSD psychiatric disabilities is still available under the ordinary legal theory of direction service connection. Yet, the evidence in this case weighs against finding that the Veteran experienced an in-service event, injury, or disease that he relates to his diagnosed unspecified depressive disorder and somatic symptom disorder. The March 2016 psychologist who evaluated the Veteran and diagnosed him with unspecified depressive disorder and somatic symptom disorder documented that the "sentinel event(s) (other than stressors)" that led to his current psychological disorders included his employment as part of law enforcement, which occurred post-military service. The psychologist recorded that the Veteran "saw several inmates attempt to kill themselves, self-mutilation" while he was employed in corrections. He also broke his jaw while working for a sheriff's department when "some weights fell on [his] face," noting that he tends to "jump" when he thinks of the incident. In addition, the psychologist documented "conflicts with a family member putting a weapon on [the Veteran]" two to three years prior to the evaluation. Finally, the examiner documented that the Veteran's childhood caused PTSD symptoms. The Veteran testified that during his active military service as a cannon crewmember, he was training with his unit and they had the wrong coordinates for a missile launch and it ended up in someone's backyard. August 2021 Board Hearing Transcript, at 12. He did not observe, nor did he know, of any casualties. He associated his general stress with his military occupational specialty, which he believed resulted in his current mental health conditions. Weighing the above evidence, the Board finds that the Veteran's testimony as to an in-service event related to his psychiatric disorder is not credible. First, the only time the Veteran ever mentioned this event was at his Board hearing, even though he had the opportunity to mention it to two prior medical professionals, Dr. Y. and the licensed psychologist. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Second, the licensed psychologist did not record any mention of any in-service events. Nor did the licensed psychologist discuss any possible relation between the Veteran's psychiatric disabilities and his military service. Third, the Veteran's testimony was very broad. He did not provide any description of the event, to include time, location, how many people were around, what occurred afterwards, or anything else. The Veteran's testimony about general stress, while credible, is not probative of any in-service event, injury, or disease because of its generalized nature. Accordingly, the Board finds the weight of the evidence is against finding an in-service event, injury, or disease occurred for purposes of granting service connection for an acquired psychiatric disorder. Therefore, the second element is not satisfied. Third element: A causal link In the interest of completeness, even if the Board assumes for the sake of argument that the Veteran's in-service stress, to include a failed missile training event, was credible and probative, there is a lack of any evidence that his unspecified depressive disorder or somatic symptom disorder are related to his military service. In fact, the evidence indicates the opposite. The March 2016 licensed psychologist reasonably related all of the Veteran's psychiatric disorders to his experience prior to military service (i.e., his childhood) and after military service (i.e., his employment in law enforcement). There is no competent, credible, or probative evidence of record that causally links his military service and psychiatric disorders. For the reasons already discussed, the Board finds Dr. Y.'s opinion as to a causal link is not competent and, thus, not credible. Therefore, the third element would not be satisfied. Accordingly, service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, unspecified depressive disorder, and somatic symptom disorder, is denied. REASONS FOR REMAND 1. Service connection for a low back disability, to include intervertebral disc syndrome and degenerate disc disease, is remanded. As part of his claim for service connection for his back disability, the Veteran testified that he experienced a Humvee accident during his service in the U.S. Army Reserve where he fell from a vehicle onto his back. An October 25, 2004, Reserve in-service medical report documented this accident and treatment. An undated Reserve in-service medical record states that an MRI of the Veteran's back showed "a loss of intrasubstance T2 signal at the L4-5 and L5-S1 levels consistent with [degenerative disc disease]. There is an anterior extradural defect at L5-S1 level." The issue is that the Veteran was discharged from the U.S. Army Reserve under "other than honorable conditions." April 14, 2008, Department of the Army Order. "If a service member receives . . . a discharge under other than honorable conditions . . . , VA is instructed to make a formal character of discharge determination before addressing a claim for benefits on the merits." Robertson v. Shinseki, 26 Vet. App. 169, 175 (2013), aff'd sub nom. Robertson v. Gibson, 759 F.3d 1351 (Fed. Cir. 2014). If VA determines that the service member was discharged or released under any of the circumstances outlined in 38 U.S.C. § 5303 or its implementing regulation, 38 C.F.R. § 3.12, VA benefits (other than chapter 17 medical care) are not payable unless VA finds that the service member was insane at the time of committing the offense that precipitated that discharge or release. Id.; see 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). The record does not contain any information on the basis for the Veteran's other-than-honorable-conditions discharge, nor has a formal finding been rendered. In addition, as a Reservist, the Veteran is only entitled to service connection if his back disability is related to his active or inactive duty for training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). "Active duty for training" refers to the two weeks of annual training which each Reservist must perform each year. It may also refer to the Reservist's initial period of training. "Inactive duty for training" refers to the twelve four-hour weekend drills that each Reservist must perform each year. These drills are deemed to be part-time training. The Board finds no evidence in the record documenting his active or inactive duty timeframes. Thus, the Board cannot determine whether the Veteran's Humvee accident occurred during a qualifying period of active or inactive duty for training. Consequently, remand is required to obtain information on these issues. The Board notes that it has decided the Veteran's claim for service connection for an acquired psychiatric disorder despite the underdevelopment of his character-of-discharge and Reserve-training information because that claim is not based on his Reserve training. That claim is solely based on his active military service as part of the U.S. Army. Therefore, there is no prejudice to the Veteran.\ 2. Service connection for a right knee disability is remanded. 3. Service connection for a left knee disability is remanded. 4. Service connection for erectile dysfunction is remanded. The Veteran's claim for his right knee, left knee, and erectile dysfunction are intertwined with his claim for service connection for a back disability. He has asserted that these disabilities are secondary to his back disability. As to his erectile dysfunction, he asserts the medication he takes for his back pain causes erectile dysfunction. Hence, the resolution of these disabilities turns, in part, on whether the Veteran's back disability may be service connected. In addition, he asserts his right knee, left knee, and back disability are secondary to his service-connected left ankle disability. The VA Regional Office obtained a medical opinion in February 2015 addressing secondary service connection, but it is inadequate as it only states, "the medical literature would not support that a cleft ankle(sprain) condition would cause or result in his current Lumbar spine or [bilateral] knee conditions." This is conclusory. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Furthermore, the examiner did not address the secondary theory of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 13840 (2013) (a medical opinion regarding secondary service connection must address both causation and aggravation to be adequate). Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Contact the appropriate agencies/departments and request copies of all of the Veteran's U.S. Army Reserve records, to include dates of active and inactive duty for training, and all records associated with his "other than honorable conditions" discharge that illustrate the basis for his discharge. Document all requests for information as well as all responses in the claims file. If unavailable, make a formal finding of unavailability and associate such with the record. 3. After completing directive #2, make a formal finding on whether or not the Veteran's "other than honorable discharge" from the U.S. Army Reserve prohibits him from receiving VA compensation benefits under 38 U.S.C. § 5303; 38 C.F.R. § 3.12. If not, determine whether the cited Humvee accident occurred during a qualifying period of active or inactive duty for training. 4. After accomplishing the foregoing directives, obtain an addendum opinion from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's back disability, to include intervertebral disc syndrome and degenerate disc disease. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include (1) lifting of howitzers in service; (2) digging of foxholes; and (3) a Humvee accident. Please see the discussion provided above as to the Veteran's discharge and service periods, the Humvee accident can only be a qualifying in-service event if it occurred during a period of active or inactive duty for training and the Veteran's discharge from the U.S. Army Reserve under "other than honorable conditions" does not bar him from receiving VA benefits. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disability was caused by (proximately due to or as the result of) his service service-connected left ankle disability. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed back disability was aggravated by his service-connected left ankle disability. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's August 2021 Board hearing testimony as to the in-service events that he believes caused his back disability, to include (1) lifting of howitzers in service; (2) digging of foxholes; and (3) a Humvee accident. August 2021 Board Hearing Transcript, at 7. (b.) A private medical opinion from Dr. Y. dated received by VA on September 24, 2015. (c.) VA medical records dated 2012 to 2017 addressing the Veteran's back disability (associated with the Veteran's claims file on February 10, 2015, and May 1, 2017). (d.) Prior VA medical examinations and opinions dated February 7, 2015, and August 20, 2013. (e.) In-service U.S. Reserve medical records dated throughout October 2004. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his back disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a back disability in service or the assertion that the Veteran's service-connected left ankle disability led to his currently diagnosed back disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any, affect the conclusion? If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. After accomplishing the foregoing directives, obtain an addendum opinion from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's (i) right knee and (ii) left knee. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's (i) right knee and (ii) left knee disabilities had their respective onsets in or otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed (i) right knee and (ii) left knee disabilities were caused by (proximately due to or as the result of) his service-connected left ankle disability. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed (i) right knee and (ii) left knee disabilities were aggravated by his service-connected left ankle disability. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's August 2021 Board hearing testimony as to the in-service events that he believes caused his bilateral disability, to include (1) running, (2) physical training, and (3) lifting of heavy artillery as part of his military occupational specialty as a cannon crewmember. August 2021 Board Hearing Transcript, at 37. (b.) A private medical opinion from Dr. Y. dated received by VA on September 24, 2015. (c.) Prior VA medical examinations and opinions dated February 7, 2015, and August 20, 2013. (d.) In-service medical record dated March 18, 2002 documenting left knee pain. 6. Following completion of the foregoing directives, the VA Regional Office should, in its reasonable judgment, determine whether additional medical examinations and/or opinions are warranted for the Veteran's (i) erectile dysfunction, (ii) right knee disability, and (iii) left knee disability based on whether service-connection is granted for the Veteran's back disability, as the Veteran claims each disability is also secondary to his back disability, and that his erectile dysfunction is associated with the medications he takes for his back disability. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.