Citation Nr: 21077642 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 14-33 954 DATE: December 30, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, to include as due to service-connected left ear vertigo, purposes of accrued benefits is denied. FINDINGS OF FACT 1. The Veteran did not have a diagnosis of PTSD. 2. The Veteran's depression and anxiety disorder were not due to his military service and were not a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, to include as due to service-connected left ear vertigo, purposes of accrued benefits have not been met. 38 U.S.C. §§ 1110, 5107;38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1965 to July 1967. The appellant is his surviving spouse who has been properly substituted as the claimant. This matter comes before the Board of Veteran's Appeals (Board) on appeal of October 2011 and August 2013rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This claim was previously remanded by the Board in April 2018 for further development. The Board notes that in August 2021 the Board granted the Veteran's attorney's motion for a 90-day extension of time in which additional evidence and argument could be submitted. However, no additional evidence or argument in support of the appeal was received during that 90-day period. Accrued Benefits Periodic monetary benefits to which a Veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121 ; 38 C.F.R. § 3.1000 ; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000 ; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Essentially, accrued benefits are paid as follows: (i) to the veteran's spouse; (ii) his or her children (in equal shares); or (iii) his or her dependent parents (in equal shares) or the surviving parent. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). Only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, to include as due to service-connected left ear vertigo, purposes of accrued benefits The Appellant asserts that Veteran was entitled to service connection for PTSD as a result of his service in Vietnam. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). Initially, the Board concludes that the Veteran did not have a diagnosis of PTSD at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). In August 1998, the Veteran underwent a VA psychological examination. The Veteran reported a number of incidents in service which caused emotional difficulty. He reported occasional flashbacks and stated that he did not like to be around people and crowds. The examiner diagnosed the Veteran with alcohol abuse in early full remission and concluded that the Veteran did not meet the PTSD criteria. Further, the examiner noted insufficient avoidance symptoms, diminished interest, and no sleep problems. The Veteran underwent a VA examination in July 2007. The examiner diagnosed the Veteran with mood disorder and antisocial personality disorder. The examiner stated that no credible symptoms of avoidance were shown and therefore the DSM- IV criteria had not been met. Further, the examiner noted that neither depression nor anxiety were evident at diagnosable levels. During his May 2011 initial PTSD VA examination, the Veteran reported that he thought about Vietnam all the time, had severe bad dreams 2-3 times a week, and negative attitude toward other humans. The examiner noted no hospitalizations and no current treatment. The examiner concluded that the Veteran's stressors may be severe enough but his response to it does not indicated present symptoms of PTSD. Therefore, a diagnosis of PTSD was not established. The Veteran underwent a private psychological examination in September 2012. The psychologist diagnosed the Veteran with chronic PTSD, depressive disorder NOS, anxiety disorder NOS, and alcohol dependence in full sustained remission. During his examination, the Veteran endorsed symptoms of anxiety and depressed mood related to his vertigo, which results in moderate impairment. The psychologist opined that the Veteran's symptoms of PTSD are related to noncombat experiences in Vietnam. Further, the psychologist stated that the Veteran had not been diagnosed previously because of Veteran's style of interaction and the way that he copes with his symptoms. The Veteran underwent an additional PTSD VA examination in September 2014. The examiner again found no diagnosis of PTSD. The examiner noted that the Veteran had not received mental health treatment since 2011 VA examination. The examiner also opined that the Veteran's private VA examination was insufficient for purpose of compensation and pension as it does not include a description of the full spectrum of symptoms requisite for a diagnosis of PTSD or depression. Further, the examiner stated that the opinion was inaccurate and inconsistent with the Veteran's report symptoms. The Board acknowledges September 2012 private psychologist opinion discussed above diagnosing the Veteran with PTSD. However, the Board assigns significantly more probative value to the opinions provided by the VA medical examiners who closely followed the guidelines set forth in the DSM-IV and DSM-V as required by law. See 38 C.F.R. § 4.125. In contrast, the private psychologist did not discuss the DSM-V criteria. Consequently, the Board finds that service connection for PTSD is not warranted. Nevertheless, the Board recognizes that the Veteran has also claimed service connection for depression and anxiety. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. However, the Board determines that service connection is also not warranted on this basis. First, while the Veteran's June 1965 report of medical history shows that the Veteran selected yes for depression or excessive worry, the Veteran's July 1967 separation examination does not reflect any complaints, signs, symptoms, or a diagnosis related to a psychiatric disorder. In fact, the Veteran reported that he was in "good" health and specifically denied symptoms of a psychiatric disorder that included trouble sleeping, depression, excess worrying, and nervous trouble. Moreover, the post-service evidence does not reflect psychiatric symptoms or treatment until many years after separation from service. Indeed, the medical evidence reports that the Veteran did not have symptoms/complaints, or a diagnosis related to a psychiatric disorder until approximately 1998. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309 (a) is not warranted because her psychiatric disorder did not manifest to a degree of 10 percent or more within a year of separation from active service. See 38 C.F.R. § 3.307 (a). As part of this claim, the Board recognizes the statements made by the Veteran and the appellant regarding his history of symptoms. Specifically, that his depression and anxiety was due to his left ear vertigo. In this regard, while the Veteran and appellant are not competent to diagnose a psychiatric disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus require a determination that is "medical in nature," they are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, in asserting that his psychiatric disorder is related to his is vertigo, he was effectively not asserting that such symptoms had persisted since active duty. Next, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's psychiatric disorder to active duty service. The Veteran underwent a private mental examination in September 2012. The psychologist diagnosed the Veteran with depressive disorder, anxiety disorder, and alcohol dependence in full sustained remission. During the examination, the Veteran endorsed symptoms of anxiety and depressed mood related to his vertigo, which results in moderate impairment. The psychologist opined that the Veteran's depressive disorder and anxiety disorder are more likely than not related to vertigo. The Veteran sought another private opinion in April 2015. The psychologist opined that the Veteran's vertigo was more likely than not aggravating his anxiety disorder due to another medical condition. However, in an addendum opinion provided in September 2019, the VA examiner stated that it was less likely than not that the Veteran's anxiety or depression, neither of which were diagnosed by Dr. Davis as separate conditions at the time of personal exam, were related to labyrinthitis or hearing loss. In support of this opinion, the examiner stated that there is no clear research that indicates either of the diagnosed service-connected conditions have a reliable connection to affective disorders, nor, in his experience, does either condition make someone more vulnerable to affective disorder. Therefore, the examiner stated that they could not identify any evidence raising the probability of a secondary relationship to the 50 percent level. In this case, the Board assigns significantly more probative value to the opinion provided by the September 2019 VA examiner. The Board finds that the examiner's opinion is well-reasoned and is supported by the medical evidence rather than based on the Veteran's report of symptoms. The Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of a psychiatric disorder. See Jandreau, 492 F.3d at 1377, n.4. Because a psychiatric disorder is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veterans statements, by themselves, are insufficient to establish service connection. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica