Citation Nr: 21074554 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-59 879 DATE: December 15, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. VETERAN'S CONTENTIONS The Veteran seeks service connection for PTSD which he contends is related to military sexual trauma (sexually assaulted while being examined for a chronic gastrointestinal problem and while being examined after a spider bite). Alternately, the Veteran contends that he has PTSD related to harassment from his superior noncommissioned officer (including an incident in which the officer tried to strip him of his weapon while he was in a combat zone). FINDING OF FACT The Veteran does not have a current diagnosis of PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to November 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2014 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Louisville, Kentucky. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. The transcript of the hearing has been associated with the claims file. These matters were previously before the Board at which times they were remanded for further development. Entitlement to service connection for PTSD Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD in particular requires medical evidence diagnosing the condition under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), or by findings supported in an examination report; 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), 4.125(a). During the course of the appeal, the regulations pertaining to psychiatric disorders were amended. See 79 Fed. Reg. 45,093 (Aug. 4, 2014) (effective Aug. 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the DSM-5, as opposed to the DSM-IV. Id. As the Veteran's claim was certified to the Board in December 2017, the amended regulations apply. Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include but are not limited to records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). The threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim of entitlement to service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As will be discussed, the Board finds that the Veteran has not met the criteria for a diagnosis of PTSD during the course of the appeal. In this regard, the Veteran was afforded an Initial Posttraumatic Stress Disorder VA Examination in October 2020 during which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5. The examiner acknowledged the Veteran's lay statements and combat service and reasoned that the Veteran did not meet the criteria for PTSD based upon both the described stressors and the symptoms. In July 2021, the Board remanded the Veteran's claim, and the Veteran was afforded an additional VA examination in September 2021. The September 2021 VA examiner again opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence of PTSD during the examination or in subsequent VA mental health examinations (although military sexual trauma was noted by a VA provider). Dr. LB, Vocational Counselor, noted a diagnosis of bipolar II and anxiety; these diagnoses along with substance abuse were noted to be consistent with the examiner's diagnoses and other mental health professionals post military service. The Board finds the October 2020 and September 2021 opinions to be highly probative. The opinions were based on a review of the claims file and relevant facts, examination of the Veteran, and the examiners provided detailed rationales. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent opinion of record to the contrary. The medical evidence of record otherwise includes VA treatment records which also do not document a current diagnosis of PTSD either during the appeal period, or proximate to the filing of the claim for service connection. To the extent that the Veteran has stated that he has PTSD related to service, the Board finds that the Veteran is competent to report his symptoms; however, he is not competent to provide an opinion as to diagnosis and the etiology of PTSD because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the competent evidence of record fails to show that the Veteran has a current diagnosis of PTSD, his claim for service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. The Veteran seeks service connection for an acquired psychiatric disorder other than PTSD which he contends is related to military sexual trauma (sexually assaulted while being examined for a chronic gastrointestinal problem and while being examined after a spider bite). Alternately, the Veteran contends that he has an acquired psychiatric disorder other than PTSD related to harassment from his superior noncommissioned officer (including an incident in which the officer tried to strip him of his weapon while he was in a combat zone). In this regard, as discussed above, the September 2021 VA examiner indicated that bipolar II, anxiety, and substance abuse were consistent with the examiner's diagnoses and the other mental health professionals post military service. However, the examiner did not provide a nexus opinion regarding such diagnoses. The Board notes that the July 2021 Board remand directives specifically requested that the examiner acknowledge and discuss all psychiatric diagnoses of record diagnosed during the period on appeal and determine whether they had their clinical onset in service, within one year of service, or were otherwise related to service. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that an addendum opinion should be provided on remand. Additionally, in an October 2021 addendum the examiner opined that there was no evidence of bipolar disorder during the military or within one year after the military. In determining that there was no evidence of the clinical onset of bipolar disorder either during service or within the first year after service, the examiner considered it significant that behavioral issues and substance abuse were noted prior to the military and the Veteran was diagnosed with ADHD which resulted in difficulty interacting with others, in school, and in the military, additionally exacerbated by substance abuse. The examiner also reasoned that there was a significant overlap between ADHD, substance abuse, and bipolar disorder. However, without a diagnosis of bipolar disorder in the military and a comprehensive post military neuropsychic examination diagnosing the Veteran with ADHD, the examiner determined that it could not be established that a bipolar disorder existed during or after (one year) due to military events. The examiner further stated that if there was no history of behavioral problems, fighting, and substance abuse, the opinion would be that it would be at least as likely as not that his current bipolar disorder could be attributable to in-service events. The October 2021 VA opinion suggests that the Veteran may have experienced psychiatric symptoms in the form of behavioral problems and substance abuse prior to service. Therefore, the Board finds that clarification is needed in the form of an addendum opinion addressing whether there is clear and unmistakable evidence that the Veteran has a current acquired psychiatric disorder which pre-existed service and if so whether it progressed at an abnormally high rate or to a greater degree than would be expected (was aggravated) due to service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claim's files, and associate with the claims file any outstanding VA treatment records. 2. Return the claims file to the VA examiner who provided the October 2021 opinion, if available. If the examiner is not available, send the claims file to another examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. (a.) Is there clear and unmistakable (obvious, manifest, and undebatable) evidence that an acquired psychiatric disorder other than PTSD preexisted service? Please state upon what facts and medical principles the opinion is based. (b.) If you determine that there clear and unmistakable evidence that an acquired psychiatric disorder other than PTSD preexisted service, state whether it is clear and unmistakable that the disability WAS NOT aggravated (i.e. permanently worsened beyond its natural progression) during service or whether it is clear and unmistakable that any increase was due to the natural progress of the disease? Please discuss the Veteran's gastrointestinal issues during service etc. (c.) If you determine that there is no clear and unmistakable evidence that an acquired psychiatric disorder other than PTSD preexisted service, please offer an opinion as to whether it is at least as likely as not that an acquired psychiatric disorder other than PTSD had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that he has a psychiatric disorder other than PTSD related to military sexual trauma (sexually assaulted while being examined for a chronic gastrointestinal problem and while being examined after a spider bite) and his contention that he has an acquired psychiatric disorder other than PTSD related to harassment from his superior noncommissioned officer (including an incident in which the officer tried to strip him of his weapon while he was in a combat zone). (d.) Please discuss all current psychiatric diagnoses including bipolar disorder, depressive disorder, adjustment disorder with anxiety and depressed mood, alcohol use disorder, and anxiety disorder, and offer an opinion regarding whether each may be attributed to service. Please also discuss whether the Veteran's gastrointestinal issues during service may be considered manifestations of an acquired psychiatric condition and the opinions from Dr. Linda Boen in this regard. The examiner is advised the lack of a diagnosis of an acquired psychiatric disorder in service is not, by itself, a sufficient reason to find there is no nexus to service. In determining whether the Veteran meets the criteria for a current psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the March 2014 claim for service connection. Please note that although the Veteran may not meet the criteria for a psychiatric diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.