Citation Nr: 21009594 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-12 150 DATE: February 22, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for depression and other specified stressor disorder (claimed as mood disorder; rage and agitation; and hopeless, anger, and revenge) is granted. REMANDED Entitlement to service connection for an eye disability, to include glaucoma and/or an eye pressure condition, is remanded. Entitlement to service connection for lung disease is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for liver disease is remanded. Entitlement to service connection for kidney disease is remanded. Entitlement to service connection for a prostate condition is remanded. Entitlement to service connection for bile obstruction is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for a right hand disability, to include arthritis, is remanded. Entitlement to service connection for a left hand disability, to include arthritis, is remanded. Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for a sleep disorder, to include insomnia, is remanded. Entitlement to a total disability based on individual unemployability by reason of service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. 2. Resolving reasonable doubt in the Veteran’s favor, his depression and other specified stressor disorder are at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for depression and other specified stressor disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1973 to August 1975. In April 2020, the Veteran and his niece, P.G., testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). 1. Service connection for PTSD. The Veteran contends that service connection for PTSD is warranted based on two instances that occurred while he was stationed in Germany. First, he witnessed a multi-car accident that occurred on the Autobahn. He was riding on the convoy going to the field when the accident occurred, and somewhere between 10-15 and more than 30 people were killed. He went into shock and started having nightmares. Second, he witnessed two tanks getting blown up and at least six soldiers were killed. He started having combat stress and shell shock, including nightmares and sleeplessness. See the December 2014 stressor statement, April 2015 statement. The Veteran testified in the April 2020 Board hearing that he received at least three Article 15s in service, one of which happened just a few months after the Autobahn incident. A PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Id.; 38 C.F.R. § 4.125 (a). The newer DSM-V has now been officially released. An interim final rule was issued on August 4, 2014, which replaced the DSM-IV with the DSM 5. 79 Fed. Reg. 45093 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Jurisdiction over the present appeal was conferred to the Board in October 2017. Thus, the newer DSM 5 applies to the present case. After review of all lay and medical evidence, the Board finds that the Veteran does not have a probative diagnosis of PTSD. Records from the Alabama Department of Corrections Mental Health Services indicate that the Veteran was treated for depression disorder between 2003 and 2006. He was also noted to have rule out adjustment disorder, rule out mood disorders, and rule out psychoactive substance abuse disorders. The records are silent for mention of PTSD. Records from the Social Security Administration (SSA) indicate that the Veteran was found to have severe depression in an August 2007 evaluation. VA treatment records indicate that the Veteran has been consistently noted to have diagnoses of depression and substance abuse, including some inpatient hospitalizations; however, they are silent for mention of PTSD and a PTSD screening in November 2016 was negative. In a July 2020 evaluation by a private psychologist, Dr. A.S., the Veteran was diagnosed with neurocognitive disorder secondary to stroke, other specified stressor disorder, depression, and polysubstance dependence in remission. Dr. A.S. indicated that the Veteran reported difficulties with nightmares about ware and military service, as well as a lengthy history of irritability, intrusive recollections of people screaming, and difficulties with hypervigilance and anxiety since his time in the military. However, no clear Criterion A stressor was established, nor were the Veteran’s constellation of symptoms suitable for a diagnosis of PTSD. Rather, the appropriate diagnosis was other specified stressor disorder. In sum, the competent and credible evidence of record establishes that the Veteran does not have a current diagnosis of PTSD. Although the Veteran has other mental disorder diagnoses, he has never been given a diagnosis of PTSD. The only evidence of a diagnosis of PTSD is the Veteran’s own statements. The Board finds that although the Veteran is competent to describe observable symptoms, he is not competent to diagnose PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). There is no evidence that the Veteran has the medical education and training required to make a competent clinical diagnosis of PTSD or attribute symptoms to such diagnosis. As such, the Board finds the Veteran’s statements probative with regard to the Veteran’s current symptoms, but finds little probative value with regard to establishing a diagnosis of PTSD. In contrast to lay statements, the Board finds that Dr. A.S.’s opinion is competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Dr. A.S. rendered his opinion after reviewing the Veteran’s medical records and STRs, and concluding an hour-long clinical interview with the Veteran and his niece. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner’s access to the claims folder and the Veteran’s history, and the thoroughness and detail of the opinion). He provided facts and rationale on which he based his opinion, pointing to specific medical treatment records as support for his opinion and explaining the DSM criteria that had not been met for a diagnosis of PTSD. Finally, the probative value of the Dr. A.S.’s opinion is further bolstered by its consistency with the medical evidence in the Veteran’s medical history, which shows that although the Veteran has consistently reported mental health symptoms, a PTSD screening was negative and a diagnosis of PTSD has never been rendered. In sum, the weight of the competent and credible evidence shows that the Veteran does not have a current diagnosis of PTSD. Without competent evidence of a diagnosed disorder, service connection for the disorder cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability, there can be no valid claim.”); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). 2. Service connection for depression and other specified stressor disorder. As discussed above, the Veteran was diagnosed with depression and other specified stressor disorder in a July 2020 private mental health evaluation. Dr. A.S.’s report indicates that due to two severe strokes in November 2019, the Veteran was an extremely poor historian. However, he did recall a truck accident in service in Germany in which a German civilian and multiple service members were killed. He also reported having anxiety, depression, and anger when he was drafted by the military because it interrupted his career and personal life. Dr. A.S. concluded that the Veteran had a lengthy history of depression, which he reported began during military service, and clearly impacted him throughout the records on file. The Veteran was consistent in his reports of the origins of his depression being drafted and having his life considerably disrupted by service, especially being stationed overseas. The Veteran’s depression more likely than not began during the course of his military service, and his other specified trauma disorder as likely as not began in service related to some of the stressful events he experienced there. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to definitively opine on the etiology of the depression and other specified trauma disorder, as the 2007 evaluation report done for the SSA indicates that the Veteran’s depression was due to financial insecurities, the inability to provide for self and family, and inability to do meaningful work. However, under the law, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). As noted above, the Board finds Dr. A.S.’s opinion to be probative, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Thus, as there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Board finds that this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for depression and other specified trauma disorder is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an eye disability is remanded. The Veteran contends that he had vision problems beginning in service, which were related to his current diagnosis of glaucoma. His vision was blurry, his eyes glossed over, and “it looked like blood.” See the April 2020 Board hearing transcript. Service treatment records (STRs) indicate that the Veteran was seen at an optometry clinic twice. In April 1974, the Veteran reported that he had blurry vision, tearing, itching, burning, and headaches, and his eyes particularly bothered him when he woke up in the morning. He was not given a prescription for glasses or contact lenses. In July 1974, the Veteran reported that he could not read very well; he was given a prescription for distance glasses. In a June 1975 service separation examination, the Veteran’s bilateral vision was noted to be 20/20. Post-service VA treatment records dated in January 2013 indicate that the Veteran was found to have ocular hypertension, the right eye more than the left eye. In October 2015, the Veteran was diagnosed with open angle glaucoma of the right eye and ocular hypertension of the left eye. He was also noted to have optic nerve hyperplasia (ONH) that appeared thin inferiorly, a suspected arcuate defect of the right eye, and thinner than average corneas. As such, the Board finds that the evidence of record supports the need for a VA medical opinion on the issue. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 2. Entitlement to service connection for lung disease is remanded. 3. Entitlement to service connection for asthma is remanded. 4. Entitlement to service connection for liver disease is remanded. 5. Entitlement to service connection for kidney disease is remanded. 6. Entitlement to service connection for a prostate condition is remanded. 7. Entitlement to service connection for bile obstruction is remanded. 8. Entitlement to service connection for diverticulitis is remanded. The Veteran asserts that he worked on a maintenance unit in service. He was around vehicles all the time, and as such, was exposed to gas, emissions, cleaning agents, and “all kinds of chemicals.” He contends that his claimed lung disease, asthma, liver disease, kidney disease, prostate condition, bile obstruction, and diverticulitis are all due to this in-service exposure. He also contends that he had back and side pain in service and/or right after service, which were caused by these claimed conditions. See the April 2020 Board hearing transcript. Post-service VA treatment records indicate that the Veteran was noted to be on tamsulosin for his prostate in January 2013; was noted to have a history of a hemorrhagic cyst on the left kidney, and was diagnosed with diverticulosis and hepatic (liver) lesions that were likely hemangiomata in October 2013; a lung nodule was found in February 2016; and was noted to have cirrhosis in April 2018 with a history of borderline cirrhosis in 2012. It is unclear whether the Veteran has asthma, but he reported having it in a February 2016 VA treatment record. As such, the Board finds that the evidence of record supports the need for VA medical opinions on the issues. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 9. Entitlement to service connection for a right hand disability is remanded. 10. Entitlement to service connection for a left hand disability is remanded. 11. Entitlement to service connection for rheumatoid arthritis is remanded. The Veteran contends that his bilateral hand condition and rheumatoid arthritis were aggravated by a broken collar bone he sustained prior to service. Moreover, in service, he went to sick call for his right arm. See the April 2020 Board hearing transcript. STRs indicate that in a February 1973 enlistment examination, the Veteran was noted to have a right shoulder scar. In March 1974, the Veteran reported having right shoulder pain for two days. He was noted to have sustained a clavicle fracture in a car accident before service. The diagnosis was muscular sprain with tendonitis, and he was put on profile for 10 days. In August 1974, the Veteran injured his right arm while playing football. He was diagnosed with a sprain. A June 1975 separation examination is silent for mention of any shoulder, arm, or hand condition. In August 2020, a private physician reviewed the Veteran’s claims file and noted that the Veteran had arthritis in the bilateral hands. The doctor opined that the right arm pain was secondary to a repaired right clavicle fracture that occurred in service. The Board finds that the 2020 medical opinion is an insufficient basis on which to adjudicate the claims for service connection for a right hand disability, left hand disability, and rheumatoid arthritis because it is based on an incorrect premise that the Veteran fractured his clavicle in service. There is also is no opinion on the etiology of the claimed left hand condition or rheumatoid arthritis. Furthermore, there may be outstanding relevant non-VA treatment records. The Veteran indicated in the Board hearing that he was treated for bilateral hand arthritis by a doctor at Cooks Valley Medical Center. The claims file does not currently contain such records. Accordingly, remand is necessary to obtain these treatment records. Thereafter, a medical opinion addendum should be obtained. 38 U.S.C. § 5103A(d). 12. Entitlement to service connection for a sleep disorder is remanded. VA treatment records indicate that the Veteran has been prescribed trazodone for insomnia since at least October 2005. In addition, the Veteran was scheduled for a sleep study in January 2017 to assess whether he had obstructive sleep apnea (OSA); however, it appears that the Veteran was in a car accident in January and required care in a skilled nursing facility. It is therefore unclear whether a sleep study was conducted or what the results of such a study were. It is also unclear whether any sleep disorder, to include sleep apnea and/or insomnia, is attributable to the service-connected acquired psychiatric disorder, or whether it is a manifestation of a separate disability. As such, the Board finds that a medical opinion should be obtained to determine the nature and etiology of any diagnosed sleep disorder(s). 13. Entitlement to a TDIU is remanded. Prior to this Board decision, the Veteran did not have any service-connected disabilities. However, service connection for depression and other specified trauma disorder was granted herein. Moreover, any decision on the service connection claims being remanded herein may affect the claim for entitlement to a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information, and if necessary, authorization to enable the AOJ to obtain any relevant outstanding non-VA treatment records, to include treatment records from Cooks Valley Medical Center that are relevant to the claimed hand disabilities and rheumatoid arthritis. The AOJ should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed eye disability. After reviewing the entire record, the examiner should note any current eye diagnosis, to include glaucoma. For each diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not (50 percent probability or greater) that the diagnosis is related to incident, injury, or event in active service, to include discussion of the April and July 1974 service treatment records. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. 3. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed lung disease, asthma, liver disease, kidney disease, prostate condition, bile obstruction, and/or diverticulitis. After reviewing the entire record, the examiner should note any current relevant diagnosis, to include any prostate diagnosis requiring tamsulosin, hemorrhagic cyst, diverticulosis, hepatic lesions, lung nodule, cirrhosis, and/or asthma. The examiner should provide a medical opinion on whether it is at least as likely as not (50 percent probability or greater) that any relevant diagnosis is related to incident, injury, or event in active service, to include being caused or aggravated by the claimed in-service exposure to gasoline, emissions, and cleaning agents used on vehicles. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. 4. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed right hand disability, left hand disability, and rheumatoid arthritis. After reviewing the entire record, the examiner should note any current hand diagnosis. For each diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not (50 percent probability or greater) that the diagnosis is related to incident, injury, or event in active service, to include discussion of the March and August 1974 service treatment records. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. 5. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed sleep disorder. After reviewing the entire record, the examiner should note any current sleep diagnosis, to include sleep apnea and/or insomnia. The examiner should specify what sleep symptoms are attributable to the service- depression and other specified stressor disorder as distinguished from other diagnosed sleep conditions. If the various manifestations and degree of disability attributable to the sleep disorder cannot be distinguished from the other disabilities, the examiner should so indicate and explain the reasons for that conclusion. For each sleep disorder that the examiner finds is a separate disability from the service-connected depression and other specified stressor disorder, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder had its origin during, or is in some way the result of, the Veteran’s period of active military service. The examiner should also opine on whether it is at least as likely as not that any sleep disorder is proximately due to the service-connected depression and other specified stressor disorder. If not, did any sleep disorder increase in severity beyond its natural progression by the service-connected psychiatric disorder? A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.