Citation Nr: 21011267 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 08-12 946A DATE: March 1, 2021 ORDER Entitlement to service connection for a psychiatric disorder to include Posttraumatic Stress Disorder (PTSD) is denied. FINDINGS OF FACT 1. A psychiatric disorder was not manifest during service and is unrelated to service. 2. The Veteran does not have a current psychiatric disability that is the result of a disease or injury in active service, including in-service stressors. 3. Veteran does not satisfy the DSM criteria for diagnosed PTSD or the criteria for Other Specified Trauma and Stressor-Related Disorder. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a different Veterans Law Judge (VLJ) at a hearing in March 2013. A transcript of the hearing has been associated with the record. Here, during the March 2013 Board hearing, the VLJ clarified the issues on appeal; questioned the Veteran on relevant subject matter; clarified the concept of service connection; and clarified the type of evidence that would support the occurrence of the Veteran’s in-service stressor. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. That VLJ retired. This case was previously before the Board in May 2013, on which occasion it was remanded for further development. In January 2015, the Board denied the claim of service connection for PTSD. The Veteran appealed the January 2015 denial to the United States Court of Appeals for Veterans Claims (Court). In February 2016, the Court issued an order issuing a Memorandum Decision and vacated the January 2015 decision. In the February 2016 Memorandum Decision, it was found that the Board’s January 2015 decision failed to ensure compliance with their May 2013 remand instructions, as a VA examiner failed to address why medical records from January through May 2006 containing an assessment of chronic PTSD were not considered diagnoses of PTSD. The Board remanded the claim in May 2018 for further development of an alternative theory of Other Specified Trauma and Stressor-Related Disorder put forward by Veteran’s attorney. The Veteran’s claim has returned to the Board for further appellate consideration.   Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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 or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 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) (2017). With regard to the second PTSD criterion, evidence of in-service stressors, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. Service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Action Ribbon, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). The Board also notes that VA amended its adjudication regulations governing service connection for PTSD. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 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). Service connection The Veteran contends that he has a psychiatric disability that is due to his service. Specifically, the Veteran has reported a stressful incident that has caused his psychiatric disorder. While neither the VA nor Veteran could obtain service records of the incident, the Board notes that Veteran was involved in an event where he had to pick up body parts from an aircraft crash. As a result of this stressor the Veteran contends that he was diagnosed with PTSD or Other Specified Trauma and Stressor-Related Disorder (subthreshold PTSD). The Board finds that the Veteran does not have a diagnosis of PTSD or Other Specified Trauma and Stressor-Related Disorder (subthreshold PTSD) based on an in-service stressor. PTSD The Board finds that the Veteran does not have a diagnosis of PTSD based on his military stressor. Here the Veteran contends that this in-service stressor has caused him to be diagnosed with PTSD and caused symptoms of nightmares and anxiety. The Board notes that the Veteran has these symptoms, but concludes that they are not related to an in-service event and Veteran is not diagnosed with PTSD for the reasons below. The Veteran’s service records between September 29, 1969 to August 26, 1971 were reviewed and did not show any symptoms, findings or diagnosis for PTSD. The Veteran’s July 1971 separation exam noted his psychiatric examination as normal. However, Veteran’s outpatient records from 2005 to 2006 did show treatment and diagnosis of PTSD. During the time frame, Veteran reported that he was having nightmares about recovering body parts from a helicopter crash after he met the individuals that died in the crash. The Veteran also reported that he was not sleeping well and was complaining of stress. As a result of these symptoms Veteran was diagnosed with PTSD according to his outpatient records. It was reported that the Veteran’s changes at work were a major stress for him in 2006. While the RO acknowledged this diagnosis, there was no verification of the alleged helicopter accident that Veteran claimed as an in-service stressor. The RO concluded that since Veteran’s service ended in 1971 and there was no verification of the incident, there was no evidence of Veteran’s PTSD occurring in military service. Subsequently in August 2007 the Veteran filed a VA 21-4138 stating that there should be records of the accident and that would verify his in-service stressor. On February 2012, The Veteran submitted a written brief presentation with a news article about the helicopter accident the Veteran alleged was his in-service stressor. Attached to the article was a picture of the crash site which the written brief argued matched the Veterans description of the scene. Veteran’s attorney further argued in the brief that the date of the crash was within Veteran’s dates of active service further verifying the event. A videoconference hearing was held in March 2013 where the Veteran stated he had symptoms of depression and nightmares due to an in-service event. Veteran gave testimony of the crash and how it affected him. The Veteran did not report any other symptoms associated with the crash. The Board remanded the case. The Board’s remand instructions included an examination to clarify the psychiatric diagnosis and if any of the disabilities could be attributed to in-service events. The Board noted Veteran’s claim file containing VA treatment records dating from approximately 2001, but none prior to this. The Board further instructed the Veteran to identify the location and dates of VA mental health treatment prior to 2001 and since 2007 to amend this deficiency in the record. On July 2013, The Veteran was provided a VA examination to determine if the Veteran met the DSM-IV diagnostic criteria for a diagnosis of PTSD. The symptoms that were present were nightmares, poor sleep, depressed mood, loneliness, crying sometimes, difficulty getting along with people and “a feeling like someone is holding my legs down when I’m sleeping”. The examiner stated that these symptoms did not meet criteria for increased arousal or avoidance (criterion a and c for PTSD). When examining Veteran’s past records and complaints, the examiner stated that Veteran was not diagnosed with PTSD until July 2012. Further the examiner stated that the earlier results of testing for PTSD with Trauma Symptoms Inventory were invalid due to an over-endorsement of symptoms. The examiner commented that the earlier results of testing with Beck Depression Inventory and Beck Anxiety Inventory also provided excessively high scores that were within the severe range and an exaggeration of symptoms. The examiner concluded that the Veteran did not meet the DSM-IV diagnostic criteria of PTSD based on objective results and a diagnostic clinical interview from the examination. The examiner concluded that Veterans symptoms more closely meet the DSM-IV diagnostic criteria for a diagnosis of Anxiety Disorder instead of PTSD. Further the examiner stated that the Veteran’s anxiety disorder was not related to disease or injury that occurred in Veteran’s military service. The examiner commented that Veteran’s insomnia was due to his anxiety and did not warranty a separate diagnosis. The examiner further commented that the Veteran’s military service treatment records were negative for complaints, treatments or diagnoses of depression, anxiety, PTSD or other Axis I mood disorder. On February 2016 the Court issued a Memorandum Decision stating that the Board had failed to substantially comply with the May 2013 remand order. Specifically, the Court referenced that the July 2013 VA medical opinion did not explain why medical records in 2006 containing assessments of chronic PTSD were not considered diagnoses of PTSD. The Court vacated the January 2014 decision and instructed the Board to obtain a correct VA medical opinion. On July 2017 the Veteran was provided a VA examination to comply with the Court’s February 2016 Memorandum Decision. The VA examiner reviewed the Veteran’s file and relevant records including the ones the previous medical opinions failed to address. The examiner concluded that while the Veteran was diagnosed with PTSD in 2006 it was based on a few PTSD type symptoms and there was no evidence that he was experiencing symptoms that met the full criteria for PTSD. The diagnosis did not contain any further clarification of symptoms and primarily focused on treatment being related to work and then current situational stressors. The examiner noted that the 2009 and 2010 psychiatry records did not list a diagnosis of PTSD, but instead diagnosed the Veteran with an anxiety reaction to a house fire. The examiner noted that the diagnosis of anxiety disorder remained and the PTSD diagnosis was not added until 2012 which at that time was noted it was due to a house fire. The examiner concluded that the diagnosis of PTSD in the Veteran’s treatment records was made in error and that Veteran is likely diagnosed with Acute Stress Disorder following his near-death experience in the house fire in 2009. The combination of the July 2013 and July 2017 VA examinations provide more probative value than the prior positive PTSD diagnoses. As noted in the VA medical opinions the prior diagnoses of PTSD have either be based on the Veteran’s experience with a home fire or were based on symptoms that were over-endorsed on faulty tests. While the July 2013 VA examination was not a complete analysis of the record, the July 2017 examination provided the same conclusion while analyzing the complete record. A grant of service connection requires an in-service stressor and a valid diagnosis in accordance with the DSM. Here, we have been presented with a conflict inh the record. In the past, an examiner entered a label of PTSD. However, as noted by the subsequent examiners, there is evidence of over-reporting and a determination that the diagnosis of a PTSD is not supported. Although we have considered the prior notation of PTSD, we agree with the subsequent examiners that the basis of attaching the label in the past was not fully supported and that it was not a valid diagnosis within the meaning of the regulation. Accordingly, service connection for PTSD is not warranted. Other Specified Trauma and Stressor-Related Disorder The Board finds that the Veteran does not have a diagnosis of Other Specified Trauma and Stressor-Related Disorder (subthreshold PTSD). The Veteran argues that the February 2018 Supplemental Statement of the Case (SSOC) did not address the August 2016 favorable medical opinion. The August 2016 medical opinion opined that it is as likely as not that Veteran’s subthreshold PTSD is related to his military service. The Veteran submitted scholarly articles to support that subthreshold PTSD is identified in DSM-5 as a psychiatric disability. On May 2018 the Board remanded for an addendum opinion if the Veteran had been diagnosed with Other Specified Trauma and Stressor-Related Disorder. A September 2018 VA medical examination was provided to the Veteran. The VA examiner opined that the Veteran does not have a diagnosis of Other Specified Trauma and Stressor-Related Disorder (subthreshold PTSD). The examiner reviewed all pertinent documents in the case and concluded strongly based of the previous July 2013 and July 2017 VA medical examinations. The Veteran has been instead diagnosed with Anxiety Disorder and Unspecified Anxiety Disorder which the examiner stated were deemed unrelated to Veteran’s military service. Instead the VA examiner echoes the previous VA examiner opinion in that these disorders are likely due to his near-death experience in the house fire in 2009. The examiner conclude that based on the objective evaluations by the VA examiners in 2013 and 2017 the Veteran did not have symptoms significant enough to render diagnosis of subthreshold PTSD. Here, again we are presented with conflicts in the record. However, the far more thorough and reasoned opinions establish hat the Veteran does not have subthreshold PTSD or other stressor related disorder. Accordingly, service connection for Other Specified Trauma and Stressor-Related Disorder is not warranted. Other psychiatric diagnosis The analysis above addressed the presence of absence of specific diagnoses. However, there is another diagnosis and the underlying facts are the same. The most probative evidence establishes that the appellant has an anxiety disorder. However, there is no credible proof of any psychiatric disorder in service. Rather, at separation, the psychiatric evaluation was normal. Furthermore, the remote finding was attributed to post-service cause. Lay evidence The Veteran is competent to report that which he has been told by a medical professional. Here, it is highly likely that he has been told he has PTSD or other stressor related disorder. However, this lay/medical evidence is of no greater probative value than the medical evidence upon which it is based. As explained above, the positive medical diagnoses are accorded less probative value. It stands that the lay/medical evidence is equally of lessened probative value. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a psychiatric disorder to include PTSD and Other Specified Trauma and Stressor-Related Disorder. The benefits sought on appeal are accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.