Citation Nr: 21009160 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-40 177 DATE: February 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed, to include posttraumatic stress disorder (PTSD) and other psychiatric pathology, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not demonstrate sufficient PTSD criterion to support a PTSD diagnosis. 2. The preponderance of the evidence shows that the Veteran does not have an acquired psychiatric disorder or other psychiatric pathology, other than PTSD, that manifested in service or is otherwise etiologically related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder, other than PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1953 to September 1955. The Board of Veterans’ Appeals (Board) remanded this matter for further evidentiary development in February 2019 and again in October 2020. The case has returned to the Board for appellate review. Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed, to include PTSD and other psychiatric pathology is denied. Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). According to VA regulations, entitlement to service connection for PTSD requires that three elements be present: (1) evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link between current symptomatology and the claimed in service stressors. See 38 C.F.R. § 3.304(f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, variously diagnosed. The Veteran contends that he has a psychiatric disorder, specifically PTSD, that is related to his military service. He has identified in-service stressors including serving in Korea when the war was over, but he knew of many who were killed by the mines that were left. See August 2020 VA examination report of Veteran reporting stressor. The evidence of record establishes that the Veteran does not have PTSD. In this regard, the Veteran has been afforded several VA mental health examinations. After examination of the Veteran, the VA examiners concluded that he does not have PTSD. Specifically, they reported that he did not evidence all PTSD criterion. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for PTSD. The Board notes that the Veteran’s physician submitted a disability benefits questionnaire (DBQ) in October 2019. The physician listed the Veteran’s diagnoses as PTSD, schizoaffective disorder bipolar type, and unspecified neurocognitive disorder. However, no particular rationale was provided as to how or why the Veteran met the criteria for a diagnosis of PTSD. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. On the contrary, as discussed above, the VA examiners reviewed the Veteran’s available records as well as his entire medical history, and concluded that the evidence of record, to include examination of the Veteran, did not support a diagnosis of PTSD. The Board also notes that the Veteran’s medical treatment record contains indications of PTSD by history or as reported to physicians by the Veteran for the purpose of treatment. However, these physicians provided no further rationale as to why a diagnosis of PTSD was supported. Indeed, there was no indication in these records as to how or why all PTSD criterion were met. As such, the Board finds these diagnoses to be of no probative value. The Board has considered the Veteran's statements that he has PTSD. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is current PTSD. The Veteran's lay assertions are therefore afforded less probative weight, and less credibility than the VA examination reports. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have PTSD due to service. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. We emphasize that under the provisions of 1110, there must be disability and such disability must be due to disease or injury. Although Saunders v. Wilkie, 886 F.3d 1356 (Fed.Cir. 2018) addressed whether pain could be a disability, Saunders did not eliminate the requirement that there be underlying acquired pathology (disease or injury). Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for PTSD under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes that the Veteran has been diagnosed with psychiatric disorders other than PTSD. Specifically, he has been diagnosed with schizoaffective disorder and unspecified neurocognitive disorder. Thus, there is evidence of current psychiatric disorders other than PTSD and the remaining question before the Board is whether these psychiatric disorders are related to his military service. As for an in-service event or injury, the Veteran’s service treatment records (STRs) for the period of September 1953 to September 1955 cannot be located, and so evidence of any asserted in-service treatment is not associated with the claims file. To that end, the Board notes that the Veteran has not asserted in-service treatment for a psychiatric disorder. All efforts to obtain the records were exhausted. In that regard, the claims file contains documentation of written efforts the Agency of Original Jurisdiction (AOJ) made to attempt to obtain these records, to include a March 2016 response from the National Personnel Records Center (NPRC) that the Veteran’s records were destroyed in a fire. In cases where the Veteran’s STRs are unavailable through no fault of the Veteran, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). There is also a heightened obligation to assist the claimant in the development of his case. Id. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). Because of the missing records, the Board analyzes this claim with this heightened duty in mind. While the Veteran’s STRs are missing and presumed lost, the Board observes the Veteran’s military occupational specialty (MOS) is reflected as an Infantryman and he was awarded the Korean Service Medal, the United Nations Service Medal, and the National Defense Service Medal. See DD Form 214. Therefore, with STRs absent from the file, the Board accepts the Veteran’s statements regarding his in-service stressor as consistent with the circumstances of his service and thus finds these statements credible. See generally 38 U.S.C. § 1154 (a); See also O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Regarding a nexus between the in-service stressor and the Veteran’s current psychiatric disorders, other than PTSD, the Veteran’s VA medical treatment records show that he has sought psychiatric treatment since at least 1984. The Board notes that the Veteran’s claims file does not contain medical records prior to the 1980s. As previously discussed, the Board remanded this matter in February 2019 to afford the Veteran a new VA examination and to obtain all outstanding VA and private treatment records. The October 2019 DBQ from the Veteran’s physician listed his diagnoses as PTSD, schizoaffective disorder bipolar type, and unspecified neurocognitive disorder. However, no particular opinion or rationale was provided, although wartime stresses were noted historically. Pursuant to the February 2019 Board remand, the Veteran was afforded a VA examination in August 2020. In the October 2020 Board remand, the Board found the August 2020 VA examination somewhat inadequate for rating purposes. The August 2020 examiner provided a negative etiological opinion with the rationale that while the Veteran meets the DSM-V stressor criteria for PTSD, he does not fulfill the other requirements. However, it is unclear how this determination was made. Specifically, the findings that the in-service stressor had no influence on the Veteran post-service when the Veteran’s claims file, to include VA medical records, seem to appear to indicate otherwise. Additionally, the examiner failed to address and reconcile the Veteran’s previous PTSD diagnoses. Finally, there was no thorough discussion of the other diagnosed pathology, specifically schizoaffective disorder and unspecified neurocognitive disorder, to include whether it was found, or whether it was related to service. Pursuant to the October 2020 Board remand, the Veteran was afforded a VA examination in November 2020. The November 2020 examiner reviewed the Veteran’s claims file and noted that he does not have a diagnosis of PTSD as his symptoms do not meet the diagnostic criteria. The November 2020 examiner confirmed the diagnoses of schizoaffective disorder and unspecified neurocognitive disorder. The examiner provided a negative nexus opinion with the rationale that the Veteran first sought formal psychiatric treatment in 1984, almost 29 years after the active military discharge and there is no relation between military service and his psychiatric disorders found in 1984. The Board finds this opinion well-reasoned and thoroughly considered the Veteran’s complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board has considered the Veteran's statements that he has an acquired psychiatric disorder that is related to his military service. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that his current psychiatric disorders are related to his military service. The Veteran's lay assertions are therefore afforded less probative weight, and less credibility than the November 2020 VA examination report. Given the evidence of record, the record does not offer clinical evidence of a direct causal connection of the Veteran’s current psychiatric disorder, other than PTSD, with an event, injury or illness during active service. For these reasons and based on the objective medical evidence, the Board finds a preponderance of evidence is against the claim for service connection for an acquired psychiatric disorder, to include schizoaffective disorder and unspecified neurocognitive disorder.   Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.