Citation Nr: 21009117 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-49 797 DATE: February 19, 2021 ORDER Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the appellant has had a diagnosed acquired psychiatric disorder, to include diagnoses for PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DMS-V), at any time during or approximate to the filing of the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to July 1968. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In October 2019, the Board remanded the Veteran’s claim. The Board finds that there has been substantial compliance with the Board’s prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that the Board remanded the claim in part to allow the Veteran to submit private treatment records or authorization for release of such records. The RO sent a July 2020 letter to the Veteran (with a copy to his representative) requesting authorization to obtain all outstanding private treatment records. No records have been received, and the Veteran did not complete an authorization to allow VA to obtain any outstanding records. The record also reflects that VA made attempts to develop the Veteran’s claimed in-service stressors, including reaching out to the Veteran for more detailed information on his claimed in-service stressors. See Subsequent Development Letter (November 2019). The Veteran, however, did not respond. VA’s duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). During remand status, an October 2020 rating decision granted service connection for psoriasis and tinnitus. As to these matters, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that he has had a problem sleeping since his combat service in Vietnam, including dreams; that he does not make friends very easily and does not want to; that he has very little relationship with his daughters; and that others’ deaths do not bother him. See NOD (May 2014). At his April 2019 hearing, the Veteran reported having mood swings since he separated from service. See Hearing Transcript (August 2019). The Veteran has also submitted articles to indicate that his claimed PTSD is secondary to his now service-connected psoriasis. See Correspondence (May 2019). Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection for PTSD requires medical evidence diagnosing the condition; 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which provides that all psychiatric diagnoses must conform to the Diagnostic and Statistical Manual of Mental Disorder, 5th Edition (DSM-V or DSM-5). 38 C.F.R. § 3.304(f). The Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder as the Veteran does not have a confirmed diagnosis of PTSD or any other acquired psychiatric disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). Service treatment records (STRs) reflect no complaints of or treatment for psychological issues. The Veteran denied frequent trouble sleeping, depression or excessive worry, and nervous trouble at his enlistment in July 1964 and at separation in July 1968, and his separation examination showed normal clinical findings. Military personnel records (MPRs) reflect no evidence of behavior changes in service to include, but not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Reports of insomnia with prescription of Ambien are first documented in December 2009, when the Veteran reported experiencing insomnia for two months. See Medical Treatment Record - Non-Government Facility (October 20110. In November 2011, the Veteran filed his informal claim for PTSD. See Third Party Correspondence (November 2011). Next, in April 2019, VA treatment record reflect a provisional diagnosis pending the completion of an evaluation of unspecified trauma-and stressor-related disorder. See CAPRI (November 2019). An April 2019 VA treatment note indicated that the impression of unspecified trauma-and stressor-related disorder was: based solely on the veteran’s self-report of symptoms. The clinical assessment that led to this diagnosis did not include any measure of potential response bias, a review of the veteran’s claims file, or a review of other collateral sources. The assessment results and diagnosis documented in this note are for treatment purposes only and should not be used to make legal decisions, such as VA Compensation and Pension determinations. Id. Subsequently, a June 2019 VA treatment note again showed an impression of unspecified trauma-and stressor-related disorder. Id. VA has obtained two examinations in this matter. An April 2013 VA examination report reflects that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-4 criteria, and the Veteran does not have a mental disorder that conforms with DSM-4 criteria. See CAPRI (May 2013). The examiner provided another Axis I diagnosis – alcohol dependence disorder. Id. It was noted that the Veteran began drinking when he was an adolescent and gave no indication that he drank heavily due to his claimed PTSD symptoms. Id. The examination showed that his reported depression and anxiety symptoms “are as likely as not an extension of his Alcohol Dependence.” Id. In a subsequent Board remand in October 2019, the Board recognized that the April 2013 VA examination was inadequate for rating purposes, because the diagnosis was not made in accordance with DSM-V criteria, and remanded for a new VA examination. See BVA Decision (October 2010). A September 2020 VA PTSD examination reflects that Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-V criteria, and the Veteran does not have a mental disorder that conforms with DSM-V criteria. See C&P Exam (September 2020). Upon a thorough review of the record, including an earlier medical evaluation as well as more recent treatment records from 2019, the examiner indicated that the Veteran exhibited a guarded response style and denied all symptoms of intrusion and avoidance. The Veteran reported at the examination that his mood is fine or average, that he shies away from getting to know people, that he no longer has intrusive memories or distressing dreams, and denied any mental health symptoms other than “sometimes get a little moody, mostly in a verbal manner.” He stated that he now falls asleep easily but still wakes up frequently. Id. Further, the Veteran did not meet criteria for any other mental disorder due to lack of occupational or social impairment. Id. The competent, credible evidence in this matter reflects that the Veteran does not have an acquired psychiatric disorder and has not had one at any time approximate to the filing of the claim. The Board accepts that the Veteran is competent to report his symptoms, such as irritability, anxiety, and depression. However, he is not competent to diagnosis himself with PTSD, or any other mental disorder, in accordance with the DSM-V, as this requires medical training and expertise; a diagnosis of mental disorder for VA purposes is simply not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s opinion has no probative value. Moreover, the Veteran has neither identified nor provided any favorable medical opinions to weigh in this matter. The Board notes that, although a June 2019 VA assessment suggests an impression of unspecified trauma-and stressor-related disorder, no diagnosis was actually made; but rather, the attending “non-credentialed, licensed psychologist” specifically indicated that she worked under supervision of a licensed supervising psychologist. The record reflects no clinical diagnosis of PTSD or any other acquired psychiatric disorder under the DSM-V criteria. The Board assigns greater probative value to the September 2019 VA examination as it was prepared by a skilled, trained medical professional with consideration of the Veteran’s history, relevant service and post-service medical records, and examination findings. The examination findings are supported and congruous with the other evidence of record, which also did not indicate a diagnosis of PTSD or any other acquired psychiatric disorder in accordance with the DSM-V. The Board assigns greater weight to the Veteran’s STRs including normal clinical evaluation of the psychiatric system on service separation and the many years intervening service and the first medical findings for abnormal psychiatric pathology, albeit without a diagnosis. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Additionally, the Veteran explicitly denied any mental health symptoms at his September 2020 VA examination and declined any referral to a mental health counselor despite being encouraged to do so. Lastly, the Board is cognizant of the diagnosis of alcohol dependence contained in the April 2013 VA examination. However, even were the Board to accept solely for the sake of argument that the Veteran began abusing alcohol during his active service, the United States Congress has made it clear that willful misconduct such as drug or alcohol abuse is a bar to establishing service connection. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.1(m), (n), 3.301(c)(3), (d); see also Allen v Principi, 237 F.3d 1368 (Fed. Cir. 2001). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. In February 1998, VA General Counsel concluded that, with respect to claims filed after October 31, 1990, 38 U.S.C. § 105(a), as amended by section 8052 of Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, and as implemented by 38 C.F.R. § 3.1(m), precluded service connection of a disability resulting from alcohol or drug abuse on the basis of the disability’s incurrence or aggravation in service. See VAOPGCPREC 2-98. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.