Citation Nr: 21076578 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-04 070A DATE: December 27, 2021 ORDER The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED The claim of entitlement to service connection for a lumbar spine disability is remanded. The claim of entitlement to service connection for headaches is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has been diagnosed with PTSD, that conforms to the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders), at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1992 to July 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in July 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In January 2021, the Board wrote the Veteran and his representative to inform them that the Veterans Law Judge who conducted the hearing in October 2017 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but did not respond. As stated in the January 2021 letter, in the absence of a response, the Board will assume that the Veteran does not wish to appear at another hearing. Lastly, as for the matter of representation, the Board notes that by statement dated June 2020, the Veteran revoked his appointment of Texas Veterans Commission as Power of Attorney. As the Veteran has not appointed another representative, the Board recognizes the Veteran as now proceeding pro se in this appeal. Legal Criteria Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) 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). In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 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). Further, 38 C.F.R. § 4.125 (a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for PTSD is denied. The Veteran contends that he has PTSD related to his military service including his service in Bosnia where he observed what appeared to be a child with missing appendages. As explained below, the Board finds that the Veteran has not been diagnosed with PTSD during or proximate to the appeal period and service connection therefore is not warranted. 38 C.F.R. § 4.125. May 2009 VA treatment records indicate the Veteran presented for treatment and stated that he planned on filing for service connection for PTSD. Despite his reports of PTSD, he was assessed with a rule out substance induced mood disorder. April 2010 treatment records indicate the Veteran did not have PTSD and his DSM diagnosis included drug abuse or dependence. The Veteran was afforded a VA examination in July 2010. His diagnoses included major depressive disorder and cocaine dependency. May 2014 records note the Veteran had stable PTSD; however, the records did not identify if such a diagnosis was made according to the DSM. September 2014 records state it was unclear as to whether or not the Veteran had PTSD, and he reported that he had not been tested for PTSD. January 2015 records show his assessment included PTSD, but it was noted he was under the care of "psych." February 2015 VA treatment records indicate the Veteran's DSM-5 diagnosis was depressive disorder. An April 2016 note included an assessment of PTSD, and it was noted that the Veteran was to follow up with mental health for adjustment of meds. In May 2016 it was noted his provisional diagnoses included chronic PTSD. In January 2017, the Veteran was seen for an initial visit with the provider in the mental health clinical for medication management. His listed diagnoses were depression, nightmares, insomnia, and history of cocaine abuse. In May 2017, his assessment also included PTSD, but he was not able to see psychiatry/counseling to renew his medications. In June 2017, the Veteran was treated by a psychiatrist. He was assessed with major depressive disorder, unspecified anxiety disorder, and history of alcohol/cocaine use disorder. In August 2019, a VA psychologist performed an extensive, and exhaustive, review of the record. The examiner opined that the Veteran had never met the DSM-5 diagnostic criteria for PTSD. The examiner stated that his symptoms of depression, anxiety, and nightmares can all be attributed to his service-connected major depressive disorder. Further, the examiner stated that the Veteran's history of substance abuse interacts with, and impacts, his service-connected disability. The examiner's opinion is based on an accurate medical history, a review of the record, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because of this, the opinion is probative. In sum, none of the evidence shows the Veteran was diagnosed with PTSD according to the DSM criteria. The August 2019 examiner stated that the Veteran's symptoms of depression, anxiety, and nightmares can all be attributed to his service-connected major depressive disorder. Further, despite each of the assessments referencing mental health professionals, the record does not contain evidence of such mental health professionals diagnosing the Veteran with PTSD. The Board acknowledges that the Veteran believes he suffers from PTSD. Although lay persons are competent to provide opinions on some medical issues, the specific issue under discussion here falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Establishing a psychiatric disability for VA purposes requires a diagnosis conforming to the criteria as set forth in the DSM-5. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a psychiatric disability. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis of PTSD conforming to the DSM-5. Based on the foregoing, the Board finds that preponderance of the evidence is against finding the Veteran has, or has had, a diagnosis of PTSD at any time during the pendency of the appeal. In reaching that decision, 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. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. The appeal of this issue must be denied. REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disability is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. Following a July 2019 VA examination, the examiner opined that there was no nexus between the Veteran's lumbosacral spine diagnosis to an in-service injury, event, or illness to include the Veteran's reported injury to his back while downloading a Humvee. To support this conclusion the examiner discussed the Veteran's injury to his back while downloading a Humvee. The Veteran's service treatment record shows August 1994 treatment for low back pain after downloading a vehicle. However, the Board notes that the record also contains multiple other records of back pain. In April 1994 he reported low back pain for 5 days, in October 1994 he reported low back pain for 14 days and chronic intermittent low back pain for seven months, in April 1995 he reported low back pain, in August 1995 he had low back pain and it was noted he had a history of strain in the past, in August 1996 he reported an increase in reoccurring pain since his 1994 injury, in September 1996 he reported two years of low back pain, and in February 1997 he had back pain. Although the examiner discussed the August 1994 in-service injury, the examiner did not discuss any of the other in-service treatments related to the Veteran's back pain. Because the service treatment records contain reoccurring treatment for back pain an addendum opinion is necessary that discusses the various in-service treatment records related to the Veteran's back pain. 3. Entitlement to service connection for headaches is remanded. Following a July 2019 VA examination, the examiner opined there was no nexus between the Veteran's claimed in-service event, injury, or illness and his current migraines. To support this conclusion, the examiner noted that the Veteran's history of in-service viral syndrome headaches was documented in September 2013, and that viral syndrome and migraine headaches are not the same and one does not cause or progress to the other. The examiner noted that in 2001 the Veteran was diagnosed with tension headaches and that tension and migraine headaches are not the same. As an initial matter, the September 2013 history does not discuss the September 1995 and 1996 Service Treatment Records which only note "headaches" and do not specify whether they are viral. Further the July 2019 examiner noted the Veteran was diagnosed with tension headaches in 2001, and not migraine headaches and stated they were not the same. However, the examiner did not identify if the Veteran had a current diagnosis of tension headaches, or had such a diagnosis during the pendency of the appeal, or provide an opinion as to whether the Veteran's tension headaches are related to the Veteran's military service. October 2013 VA treatment records demonstrate that the Veteran reported he had headaches since his time at war. This lay statement of chronic headaches since service was not addressed by the examiner. As such, a remand is necessary to address the in-service evidence of headaches, consider whether the Veteran has tension headaches that are related to his service, and address the Veteran's lay statements of a chronicity of symptoms. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran's lumbar spine disability in July 2019. The examiner should be asked to again review the expanded record and prepare a supplemental report as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a lumbar spine disability that had its onset during, or is otherwise related to, the Veteran's military service. In so doing, the examiner should discuss the medical significance, if any, of the April 1994, October 1994, April 1995, August 1995, August 1996, and September 1996, and February 1997 Service Treatment Records related to the Veteran's back. If the July 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 3. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran's headaches in July 2019. The examiner should be asked to again review the expanded record and prepare a supplemental report which identifies what headache disabilities the Veteran has had during the pendency of the appeal (since March 2010) including, but not limited to migraine headaches and/or tension headaches. The examiner should opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a headache disability, to include but not limited to migraine headaches and/or tension headaches, that had its onset during, or is otherwise related to, the Veteran's military service. In so doing, the examiner should discuss the medical significance, if any, of the September 1995 and September 1996 Service Treatment Records, as well as the October 2013 report of headaches since he was involved in war. If the July 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.