Citation Nr: A21020080 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190909-188614 DATE: December 16, 2021 ORDER The claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is reopened. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT 1. The evidence submitted since the previous final denial was not previously of record and tends to prove or disprove the claim of entitlement to service connection for PTSD. 2. The most probative evidence does not indicate the Veteran had a mental health disability that was incurred in or due to his time in service. CONCLUSION OF LAW 1. The criteria for the readjudication of the claim of entitlement to service connection for an acquired psychiatric disability have been met. Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, § 5108, 131 Stat. 1105 (2017). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1963 to December 1966. Unfortunately, the Veteran died in June 2020. The Appellant is the Veteran's spouse. In the September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. New and Relevant Evidence Claim On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156 (d)). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501 (a)(1)). The Veteran was originally denied service connection for PTSD in an August 2009 rating decision. In the decision, the RO stated the Veteran's medical records showed symptoms of PTSD. However, his military occupational specialty (MOS) and service records didn't show more than an ordinary stressful environment and that consideration had been given to the fact that combat zone service is stressful no matter the duty. The RO attempted to verify the Veteran's stressor, but it could not be verified. The RO balanced this evidence with Veteran lay statements and independent psychological evaluation submitted by the Veteran and found the Veteran's PTSD was not incurred in or due to his time in service. The Veteran did not perfect an appeal and the decision became final. The Veteran was again denied service connection for PTSD in an October 2018 rating decision because the evidence submitted was not new and relevant. Relevant evidence of record prior to the previous final denial included service treatment records (STRs), medical treatment records, statements from the Veteran regarding his in-service stressors and experiences, statements from his spouse, a formal finding that the Veteran's stressors were unable to be verified. Relevant evidence submitted after the previous final denial include medical treatment records, including medical records from the Social Security Administration (SSA), STRs, statements from the Veteran regarding another stressor while in service, military personnel records, The Board finds new evidence has been added to the records since the previous final denial. The Board also finds that it is material in that it tends to prove or disprove a matter in issue as some of the records suggest the Veteran has been diagnosed with PTSD. Therefore, the claim to service connection for PTSD will be reopened. Psychiatric Disability Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran's description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Pursuant to Clemons, the Board has taken an expansive view of the claims of entitlement to service connection for PTSD and re-characterized it as entitlement to service connection for an acquired psychiatric disorder. The Veteran said he was sent to Andrews AFB to unload caskets returning from Vietnam and this affected the Veteran as he was unable to sleep, was scared he would be next. The Veteran said he saw "all of his friends go to the Republic of Vietnam and some did not come back." The Veteran reported he was also detailed to Arlington National Cemetery to place flags on graves and saw some of his friend's names on graves. (See March 2008 statement.) The Veteran listed a new stressor in a July 2018 statement. The Veteran said when he was stationed in Germany, he was sent for a 90 day TDY to the Berlin Wall and he stood guard at the wall. The Veteran said he feared for his life because he didn't know what the communists would do or try. The Veteran remembered seeing a man and a woman try to climb the wall and were shot and were left in the barbed wire as a message to others. The Veteran's record shows the Veteran has been diagnosed with depression and has had positive depression screenings. (See e.g. March 2008, January 2012 treatment records.) There is a lot of conflicting evidence as to whether the Veteran has been diagnosed with PTSD. March 2008 and March 2012 records indicated the Veteran did not meet the criteria for PTSD. Multiple PTSD screenings have been negative. (See e.g. February 2005, August 2007, April 2017, July 2018 treatment records). However, other PTSD screenings were positive. (See e.g. September 2009, February 2013 treatment records.) In a March 2008 record, it was indicated the Veteran first sought help for his mental health in the 1990s when his wife cheated on him with his brother. The Veteran was seen in April 2012 for his mental health. He was upset that he had not been diagnosed with PTSD and wanted to apply for compensation. The Veteran was angry because he felt his PTSD was not being addressed. In June 2012, the Veteran was seen for his mental health. The Veteran expressed interest in a PTSD diagnosis. The Veteran said he did not experience combat or witness the death of others, but he did see dead bodies, but it was unclear if he witnessed the actual bodies or in coffins. The examiner reported the Veteran appeared to have symptoms consistent with TPSD, but that his self-reported scores on the PTSD questionnaires were unusually high and may reflect negative impression management. The examiner noted the Veteran did not endorse symptoms of or meet criteria for PTSD in recent assessments. In January 2018, the Veteran was seen for his mental health with the examiner saying the Veteran had a history of PTSD diagnosed in 2013. The Veteran's STRs do not show treatment for an ongoing psychiatric problem while in service. Indeed, his separation examination does not show any mental health problems. The Veteran noted some other problems, but denied depression or excessive worry. The Veteran's military personnel records also show he was stationed in Germany. However, they do not indicate he saw anyone shot at the Berlin Wall. The Board has reviewed the Veteran's record as a whole, including the many statements by the Veteran and his spouse regarding his mental health and what he experienced while in service. The Board finds that the preponderance of the evidence does not indicate the Veteran carried a diagnosis of PTSD. While some records indicated a positive PTSD diagnosis, the Board also notes that on at least one occasion, it seemed the Veteran may have negative impression management and thus, this may have affected his positive PTSD screenings. Additionally, multiple screenings and medical evaluations showed the Veteran did not meet the criteria for PTSD. Additionally, the Veteran separated from service in 1966 with his first potential positive mention of PTSD coming over 40 years after his time in service with evidence showing his mental health symptoms may be due to other factors. The Board understands it may not rely solely on the fact that there is a lack of treatment records between the Veteran's time in service for many decades after service. However, the United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Even if the Board were to find the Veteran has been diagnosed with PTSD, the record indicates there was insufficient evidence to confirm the Veteran's claimed in-service stressors. Additionally, the Veteran's record and the Veteran himself deny that he was in combat. The Veteran's statements regarding the stressors have not be consistent. Watching "all of his friends go to the Republic of Vietnam and some did not come back" is not a valid stressor, and the Veteran's effort following this to create another stressor is found to be not credible. His anger at health care providers when they do not diagnose him with PTSD suggest an ulterior motive other than treatment for a problem. While the Board has considered the Veteran's statements of what he experienced in service and his statements of how those events effect his mental health, the Board finds there is no competent medical evidence of record that provides a link between those experiences, including his stressor submitted in July 2018, and the Veteran's time in service showing it was at least as likely as not his PTSD was due to his experiences in service. The Board finds the Veteran's record, as a whole, indicates he has been diagnosed with a mental health disability, to include depression. However, as indicated above, the Veteran's STRs do not indicate he was seen in service for depression nor does the record show the Veteran's depression was at least as likely as not due to his time in service. Regarding the claims above, the Board acknowledges and has considered the Veteran's statements that his conditions bother him and that he believes his mental health symptoms are due to PTSD caused by events he witnessed and experienced while in service. The Board also recognizes the Veteran continued to seek medical treatment for his mental health. However, while the Veteran is competent to report the symptoms of his disabilities, neither he nor the Appellant is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his mental health condition or whether he in fact carried a diagnosis of PTSD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent medical evidence of record which does not, as a whole, indicate a link between any diagnosed mental health condition and the Veteran's time in service. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that were denied above that the Board cannot, unfortunately, ignore, providing a clear basis for the opinion. This does not mean the Veteran did not struggle with his mental health. Clearly, his record indicates he did. Simply, it means the most probative evidence of record does not indicate that any diagnosed mental disability was related to his time in service. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Lastly, the Board would like to express its deepest sympathies to the Appellant for the loss of her husband. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.