Citation Nr: 21009311 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-64 568 DATE: February 22, 2021 ORDER Entitlement to service connection for major depressive disorder also claimed as posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. A psychiatric disability other than PTSD is not shown in service or for many years thereafter and is not shown by competent evidence of record to be related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for major depressive disorder (claimed as PTSD) have not been met. 38 U.S.C. § 1110, 1131, 5103(a); 38 C.F.R. § 3.159, 3.303, 3.304, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from June 1956 to February 1965. In June 2019, the Board denied the Veteran’s claim for service connection for major depressive disorder also claimed as PTSD. The Veteran appealed the decision to the CAVC which, in May 2020, vacated the decision and remanded it for further development. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is appropriate “where the record is otherwise inadequate”). 1. Entitlement to service connection for major depressive disorder also claimed as posttraumatic stress disorder (PTSD) The Veteran is seeking service connection for major depressive disorder, claimed as PTSD, which he asserts is related to his military service in Vietnam. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), 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. In this case, the Board determines that service connection for PTSD is not warranted, as he does not have a current diagnosis of this disorder. Specifically, the treatment records dated December 2011 show that the Veteran’s screening for PTSD was negative. Importantly, in September 2016, a VA examiner determined that the criteria for PTSD had not been met, instead diagnosing the Veteran with major depressive disorder likely secondary to current life stressors. The examiner specifically stated the Veteran’s mental condition symptoms are not severe enough to either interfere with occupational and social functioning to require continuous medication. The examiner noted that the Veteran denied ever taking psychiatric medications but is currently going to counseling once every other week outside of the VA. Further, the Veteran denied suicide attempts or psychiatric hospitalizations, as well as suicidal or homicidal ideation. After an extensive review of the Veteran’s records and an interview of the Veteran, the examiner noted that under the current DSM-V criteria the Veteran’s reported stressors and subsequent reported symptoms do not meet the DSM V criteria for PTSD. Further, the examiner noted that the Veteran’s service records deny any mental health symptoms and current VA treatment records indicate denial of anxiety and depression. In considering the probative value of this VA examination, the Board observes the Joint Motion for Remand (JMR) which served as the basis for the Court’s vacatur of the Board’s previous decision. Specifically, the JMR found that this VA examination was inadequate in that it determined that the Veteran did not meet “Criterion A” of the PTSD criteria, as the examiner mischaracterized the Veteran’s underlying stressor. However, in the Board’s view, requiring that the VA examiner use the correct phraseology when recounting the Veteran’s stressor event in an examination report is an unreasonably high standard when determining whether an examination is adequate. Regardless of how the stressor event was characterized in the examination report, the fact remains that the Veteran was personally interviewed by the examiner, who was able to not only hear the Veteran’s description of the event in his own words, but was able to observe the Veteran’s psychiatric presentation while the story was being told. Therefore, when considering whether the Veteran’s stressor event was the underlying cause of a PTSD diagnosis, the VA examiner’s conclusions must be given deference, regardless of how the event was transcribed in a VA examination report. The Board also notes the May 2016 opinion of the Veteran’s therapist at Awareness Counseling who opined that the Veteran fit the criteria for DSM-IV for PTSD as his symptomology is grounded in the military and his service in military and traumas he experienced and witnessed there. The therapist noted that the Veteran’s symptoms included periods of anxiety, suicide ideation (with no immediate plan), lack of motivation, impaired impulse control, illogical thinking, exaggerated startle response, night disturbances, control issues, nightmares and inability to sleep, social withdrawal and isolation, bouts of irritability and anger outbursts, emotional numbing, lack of trust, black and white thinking, low self-esteem, survivor guilt and difficulties establishing and maintaining relationships with family and outside people. The therapist opined that it was more likely than not that the Veteran’s symptoms were related to his military service. The Board also acknowledges the October 2020 private psychologist opinion in which the psychologist diagnosed the Veteran with PTSD and stated that the Veteran’s moderate symptoms of depression and anxiety are seen as being primarily related to a diagnosis of PTSD. The psychologist stated that the Veteran’s PTSD was at least as likely as not due to described stressors and satisfies the DSM criteria. In support of this opinion, the private psychologist stated that the Veteran provided a detailed statement in which he described two in-service stressors. Additionally, the May 2016 private medical opinion from the Veteran’s therapist noted that the Veteran’s PTSD symptomology is grounded in the military and his service in the military and traumas he experienced and witnessed there. Further, the Veteran reported these same stressors during his April 2019 Board hearing. Therefore, opinion it is likely as not that Veteran’s PTSD is a direct result of the incidents in service involving the bombing in Saigon and his encounter with a Vietnamese soldier. When comparing the findings from the Veteran’s treatment records and his VA examinations, greater probative value is placed on the conclusions of the VA examiners’ determination that a diagnosis of PTSD is not warranted. Specifically, the VA examiner conducted a thorough review of the claims file, and an in-person examination of the Veteran. Further, the VA examiner used the current DSM-V criteria in determining whether a diagnosis of PTSD was warranted. The Federal Circuit has recognized the unique probative value of opinions provided by VA psychiatric examiners in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). In determining that the Veteran does not have a current diagnosis of PTSD, the Board takes note of the holding by the United States Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007), where it stated that a disorder need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication. However, McClain is not applicable here, as this is not a situation where the Veteran had a legitimate prior diagnosis that has since resolved. Here, the Board has determined that the weight of the clinical evidence is against the conclusion that he had ever been diagnosed with a disorder other than major depressive disorder. As service connection is not for application unless the evidence indicates that a current disability exists, service connection is not warranted for PTSD. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Other Psychiatric Disorders The Board has also considered whether service connection is warranted for any of the Veteran’s other diagnosed psychiatric disorders, to include major depressive disorder, but concludes that service connection is again not warranted. First, the Board recognizes that the Veteran has been diagnosed with major depressive disorder. The September 2016 VA examiner cited a diagnosis of major depressive disorder and opined that the claimed condition was less likely than not incurred in or caused by in service event. In support of her opinion, she noted that there was no information in the Veteran’s current file, including his most recent evaluation and treatment records that might tie depression symptoms to the incidents in service. Further, the examiner noted that the most recent evaluation ties depression symptoms to current life stressors such as health problems and estrangement from family members. Service connection may be presumed for certain chronic diseases, including psychosis, which develop to a comprehensible degree within one year after discharge from service, even though there is no evidence of the disease during active service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. § 1101, 1112, 1113, 1137 (2012); 38 C.F.R. § 3.307, 3.3099a) (2017). However, the Veteran’s psychiatric disabilities are not considered psychosis and major depressive disorder is not considered a chronic disease. See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.384. In this case, the service connection is also not warranted for major depressive disorder. Specifically, the service treatment records do not reflect treatment for major depressive disorder in service. Notably, no psychiatric symptoms were observed at his separation examination in October 1964. In fact, the earliest indication of a psychiatric disorder or symptoms was not until over 50 years later. In fact, a December 2011 medical treatment records reveals that the Veteran denied symptoms of depression, anxiety, hallucinations, and suicidal and homicidal ideation. Therefore, continuous symptoms since service have not been shown on a clinical basis. As part of this claim, the Board recognizes the Veteran’s statements regarding his history of symptoms. In this regard, while the Veteran is not competent diagnose a psychiatric disability such as major depressive disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is 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). However, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not credible. As an initial matter, the Board cannot ignore that approximately 50 years elapsed from the time he left active duty and the first notation of treatment. Moreover, the Board notes that the Veteran sought out a claim for other benefits, but made no reference to the disorder he now claims weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Had the Veteran had a psychiatric condition at that time, as he now claims, there seems to be no reason why he would not have identified them at that time. Therefore, continuity is not established based on the clinical evidence of record or the Veteran’s statements. In making this determination, the Board again addresses the JMR, which found fault in the Board’s prior discussion of the Veteran’s credibility. Specifically, the JMR stated that the Board failed “lay a proper foundation” in making a negative credibility determination. Specifically, the JMR faulted the prior decision by not explaining (a) why a lack of treatment for 50 years is significant in its determination, and (b) why the Veteran would have been expected to include this issue in a prior claim. The Board would respond that a credibility determination is not a legal determination. In evaluating whether an affiant’s testimony is genuine to the extent that benefits should be granted based on it (which is not an insignificant question), a finder of fact has an almost limitless array of factors that may be considered. Indeed, the Court has specifically recognized that even rather murky factors such as a veteran’s demeanor at a hearing might be sufficient enough to reject uncorroborated assertions. See Caluza v. Brown, 7 Vet. App. 498 (1995). Contrary to what the JMR implies, there could never be universal “foundation” in a credibility analysis, as it should be obvious that what testimony is deemed “credible” can vary depending upon the finder of fact, and what is considered reasonable in the situation based on his or her own experience. Unless, of course, the JMR argues that human beings should be taken out of the analysis altogether. Here, the Board reserves the prerogative as trier of fact to first determine that waiting 50 years to seek treatment is a significant amount of time that cannot be merely attributed to reasonable explanations such as the lack of available medical care. Moreover, as mentioned above, it should make intuitive sense that, if a veteran had the wherewithal to submit a prior claim for benefits, it would be nonsensical to consciously omit one disorder, despite experiencing contemporary symptoms. These deficiencies cannot be easily waived away, especially when the Board is faced with the question of whether benefits should be granted based solely on bare assertions that are otherwise unsupported by the record, as is the case here. In the Board’s view, these unsubstantiated assertions need to be more airtight. Therefore, continuity is not established based on the clinical evidence of record or the Veteran’s statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disabilities to active duty, despite his contentions to the contrary. There is no clinical evidence in the record relating the Veteran’s current acquired psychiatric disability to active duty service. More importantly, there is a medical opinion that weighs against the claim. Specifically, as noted by a VA examiner who provided a medical opinion in September 2016, the examiner stated that it would be less likely than not that the claimed condition would be related to military service. In support, the examiner noted that there is no information currently in the file including the most recent evaluation and treatment records that might tie depressions symptoms to the incidents in service. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his acquired psychiatric disability 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, the Board acknowledges that the Veteran is competent to testify about any psychiatric symptoms he experienced in service despite his status as a lay person. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to provide testimony regarding the etiology of an acquired psychiatric disability, to include major depressive disorder. See Jandreau, 492 F.3d at 1377, n.4. Because acquired psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran’s major depressive disorder by themselves, are insufficient to establish service connection. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed major depressive disorder to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica