Citation Nr: 21006711 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 07-37 760 DATE: February 5, 2021 ORDER Entitlement to service-connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an anxiety disorder is denied. FINDINGS OF FACT 1. The competent evidence of record does not show a diagnosis of PTSD during the period on appeal. 2. The preponderance of the evidence weighs against a finding of an anxiety disability attributable to service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for PTSD have not been met. 38 U.S.C. §§§ 1101, 1110, 5107; 38 C.F.R. §§§ 3.102, 3.303, 3.304. 2. The criteria for an award of service connection for anxiety have not been met. 38 U.S.C. §§§ 1101, 1110, 5107; 38 C.F.R. §§§ 3.102, 3.303, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1951 to May 1953, including service in the Korean War. The Veteran died in February 2017, during the pendency of the claims. His wife, the Appellant, has been substituted in his stead as claimant. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2008, the Veteran testified at a decision review officer (DRO) hearing and in April 2013 at a Board hearing before a Veterans Law Judge (VLJ). Transcripts of the hearings are associated with the claims file. As the who conducted the April 2013 hearing is no longer at the Board, the Veteran was afforded an opportunity for another hearing before a different VLJ. In correspondence dated July 2020, the attorney indicated that the Appellant desired not an additional hearing. The issues were four times before the Board: in April 2012, June 2013, September 2013, and October 2015. In September 2013, the Board denied the issues, and the Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court). In a May 2015 Order, the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s denial, and remanded the matters to the Board for development consistent with the JMR. The issues were remanded in April 2012, June 2012, and October 2015. The most recent October 2015 remand mandated that the RO retrieve any outstanding VA treatment records and provide the Veteran with Veteran Claims Assistant Act (VCAA) Notice. The Veteran was invited to provide evidence of a current diagnosis of PTSD and evidence establishing nexus for anxiety. The Board finds that these actions corrected the errors noted in the JMR. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In addition, as noted, the Appellant, through attorney counsel, has declined the opportunity for an additional hearing. The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. Entitlement to service-connection for PTSD is denied. 2. Entitlement to service connection for an anxiety disorder is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The record shows that the Veteran was engaged in combat in Korea and received Bronze Stars, Combat Infantryman Badge, and the Korean Service Medal. Nonetheless, establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD under 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, criteria relating to the adequacy of the symptomatology and sufficiency of the stressor. Cohen, 10 Vet. App. at 153. The Veteran contended that he had PTSD and an anxiety disorder due to service. Specifically, he argued that while in Korea, he witnessed the death of and injuries of friends and having to write letters to their relatives. He also indicated that he fainted while on patrol, which he believed was due to his nerves and a symptom of his psychiatric disability. The Veteran’s service treatment records (STRs) do not show treatment, complaints, or diagnoses of any psychiatric disorders. His separation physical in May 1953 notes no complaints of a psychiatric disorder. However, during the clinical evaluation, it was not noted whether the Veteran had a psychiatric disorder. On the clinical evaluation form, a psychiatric disorder was neither marked normal nor abnormal. The Veteran’s post-service treatment records, dated in January 2008 and October 2012, note negative PTSD screenings. Furthermore, psychiatric treatment records throughout the appeal period note diagnoses of anxiety disorder and “chronic PTSD, by history.” Treatment records, dated in May 2007, show the Veteran’s report of mood changes when he thought about war. The clinician assessed “r/o (rule out) PTSD - as referred, he had mood changes when thinking about war and turns aggressive if he noticed any abnormality with other veterans. Also, on anxiety and some insomnia.” During a June 2007 VA Initial PTSD examination, the Veteran was found to not have any mental disorders. The examiner specifically noted that the Veteran also did not “fulfill the symptom criteria for the avoidance of the stimulus for re-experiencing the traumatic event or for hyperarousal.” During a June 2011 VA Initial PTSD examination, the examiner diagnosed anxiety, not otherwise specified, and PTSD, chronic by history. The examiner explained that although the Veteran met the DSM-IV stressor criteria (combat experience) for PTSD, he did not meet the DSM-IV symptoms criteria for a diagnosis of PTSD. The reliving experience and avoidant behavior symptoms were not found. The record contains a July 2013 VA Initial PTSD examination. The examiner noted “yes” to whether the Veteran’s combat experience in Korea met the stressor for the Criterion A diagnosis of PTSD. Nonetheless, he noted that the only Axis I diagnosis was anxiety, NOS. The examiner explained that although the Veteran was exposed to stressors enough to cause PTSD, he did not meet the other criteria for a PTSD diagnosis. Treatment records dated in July 2016 note that the Veteran last visited with VA psychiatry in June 2016. It was therein noted the negative screenings for depression and anxiety or PTSD, in an April 2015 Patient Health Questionnaire (PHQ). Per the October 2015 remand directives, additional VA treatment records were associated with the claims file. However, none shows a current diagnosis of PTSD; only “chronic PTSD, by history.” After reviewing the medical evidence presented above, the Board finds that the Veteran did not have a current diagnosis of PTSD during the period on appeal. The PTSD screening tests of record confirmed that the Veteran was negative for PTSD. The Initial PTSD examinations of June 2007, June 2011, and July 2013 did not diagnose PTSD. The Board is cognizant of the numerous diagnoses of “PTSD, by history,” of record. However, there is no evidence of a current diagnosis of PTSD, governmental or otherwise, rendered in service or soon thereafter, or within the appeal period by any medical professional. Thus, such a lack of a current diagnosis during the appeal period provides probative evidence against the claim. The Board acknowledges the Veteran’s numerous statements of record, of his having PTSD, with the medical evidence of record so reflecting. The Board is also cognizant of his April 2013 hearing testimony of having had PTSD, which began “two or three years ago.” While the Board finds him competent and credible to report observable symptoms, he was not a certified medical professional, as specified by VA regulation, to diagnosed PTSD. Further, he was examined numerous times by competent medical practitioners, none of whom diagnosed PTSD. Based upon the evidence of record, the Board finds there is also no probative medical or lay evidence of record of any diagnosed PTSD during the appeal period. Thus, the claim must be denied. A current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran’s post-service treatment records, however, show treatment and diagnosis of anxiety disorder, NOS, many years after service. The June 2011 VA examiner diagnosed anxiety, NOS, and explained that it began more than 50 years after discharge from service and not related to military service. The July 2013 examiner also found the diagnosed condition (anxiety) was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran “developed a mild cognitive deficit, associated anxiety and despite that, he was continuing to contribute to society by working for five years as a volunteer at the VAMC, where he was exposed daily to conversations about the military and about the diagnoses of veterans who were exposed to the war. Notwithstanding, there is no probative medical or lay evidence of record providing a link to service.” The Board notes that the Veteran’s attorney has argued that the VA examination of June 2011 is inadequate for the examiner proffered not an etiology opinion for the anxiety diagnosis. Here, however, the Board finds the June 2011 and the July 2013 examinations, in conjunction, most probative against a finding that the Veteran’s anxiety disorder was incurred in service. The examiners reviewed the claims file and provided well-reasoned explanations for the findings. Considering this evidence, the Board finds that these examinations do answer the questions remaining before the Board and that VA has fulfilled its duty to assist in this regard. Barr, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no competent medical evidence of record that contradicts the comprehensive findings of the VA examiners. The Veteran asserted that his anxiety was due to service. He was competent to provide opinions on some medical issues. However, the specific issue here, determining the etiology of his anxiety disorder, falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Such a determination requires a medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran, who, in this case, had not been shown by the evidence of record to have the training, experience, or skills to make such a determination. Here, the Veteran’s lay assertion of having anxiety disorder caused by service is not competent evidence. As there is no probative medical or lay evidence linking the Veteran’s anxiety disorder to his period of active service, the claim must be denied. In arriving at its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. Gilbert, 1 Vet. App. 49 (1990); 38 U.S. § 5107 (b) (2012); 38 C.F.R. § 3.102. Therefore, as the preponderance of the evidence of record is against the claims, service connection for PTSD and an anxiety disorder must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.