Citation Nr: 21074675 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-53 385A DATE: December 16, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and adjustment disorder, is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1973 to August 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been before the Board twice before. In January 2018 this issue was remanded to the agency of original jurisdiction (AOJ) for additional development to include a new VA examination. It was then sent back to the Board in June 2021 and was again remanded for additional development. There was a lack of clarity as to whether the new VA examination had been scheduled and/or if the Veteran had been properly notified. Therefore, the case was remanded again, and a new VA examination was ordered. Following the issuance of an August 2021 supplemental statement of the case, the matter was returned to the Board for its adjudication. Service Connection - Acquired Psychiatric Disorder The Veteran initially filed a claim for PTSD which was then reframed as a claim for service-connection for an acquired psychiatric disorder. The Veteran has submitted multiple documents regarding his tenure in service and his claimed stressors. These stressors include treating Iraqi children only to have to release them and knowing that they were going to their deaths, as well as seeing other Iraqi civilians begging to be smuggled away into Kuwait and seeing the scars from their torture. The Veteran also goes into great detail about the stress of his military career and the strain it caused on his family as well as his mental and emotional health. The Veteran did not see any time in combat during his time in service. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a diagnosis of an acquired psychiatric disorder that was incurred in service or is otherwise attributable to an in-service injury, event, or disease. After a review of the claims file, the Board concludes that, while the Veteran has been diagnosed with an acquired psychiatric disorder, the preponderance of the evidence is against a determination that the condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (b), (d). The Veteran's exit examination lists the Veteran's psychiatric health as normal. The service treatment records (STRs) are silent for any complaints of or treatment for an acquired psychiatric disorder while in active service. The Veteran submitted a psychological evaluation from December 2014 in support his claim. This evaluation was completed by a psychiatrist from Mission Hospital located in Thailand. That examiner diagnosed the Veteran with PTSD and noted symptoms of depressed mood and flattened affect. However, the examiner did not review the Veteran's VA claims file or the Veteran's VA e-folder. No records of any kind were reviewed. Moreover, the examiner did not offer an opinion as to the likely etiology of the condition. The Veteran also submitted a note dated in February 2015 confirming his attendance at weekly therapy sessions. An August 2015 letter from the same office indicated that the Veteran was under the care of the signer from February 2015 to May 2015 for PTSD exacerbated by major depression. There is no indication that the undersigned provider from this office is an M.D. The provider is listed as having an MA, MS, and CAS. Since none of these examiners were VA certified clinicians, the AOJ deferred the case until a VA examination could be obtained. The Veteran was afforded a VA examination in May 2015. This examiner found that the stressors reported in the Veteran submitted report from December 2014 did not meet the clinical criteria of criterion A for a DSM-5 diagnosis of PTSD. The examiner further stated that there was no evidence in the Veteran's record of any psychological issues impacting his social, emotional, or occupational functioning. On this basis, the examiner concluded that the evidence did not support a diagnosis of PTSD. The Veteran's treatment records indicate that he began treatment around December 2015. The initial visit contains no diagnosis, but later records indicate that the Veteran was diagnosed with adjustment disorder. These records continue through at least October 2016. No additional diagnoses are provided. The Board determined in the December 2018 remand that the May 2015 examination was inadequate as the examiner did not provide a full rationale and did not discuss the possibility that any other additional psychological disorders were diagnosable. Following the December 2018 remand, the record reflects that an examination was requested in October 2019. However, there is no indication if this examination was ever officially scheduled and if it was it is unclear whether the Veteran was notified. A November 2019 cancellation letter is in the Veteran's file stating that the Veteran was not available. There is no additional information provided. Thereafter in June 2021, the Board determined that a second remand was necessary to schedule the Veteran for a new VA examination. This VA examination was scheduled in June 2021. In July 2021 the Veteran requested to cancel the upcoming examination. No reason for this cancellation was provided. No request to reschedule was received. The Veteran's representative submitted a brief indicating that the Veteran contends that the evidence currently of record is sufficient to support granting service connection for PTSD. The Board notes the VA's duty to assist is not a one-way street and the Veteran has some responsibility to aid VA in obtaining evidence to substantiate his claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). Further, when a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. As the Veteran failed to report for the scheduled examinations without explanation, additional medical etiology opinions could not be obtained. While the Veteran is competent to report symptoms of an acquired psychiatric disorder, he is not competent to provide an opinion linking that diagnosis to his active service. An opinion of that nature requires medical knowledge and expertise that is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Additionally, there is no indication from the record that the Veteran has been diagnosed with an acquired psychiatric disorder within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309 (a) (2019). In sum, while there is evidence of a current diagnosis of adjustment order and possibly PTSD, there is no competent indication from the record that it is etiologically related to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.