Citation Nr: 21012570 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-08 938 DATE: March 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder, to include dysthymic disorder, is denied. Entitlement to service connection for post-traumatic stress disorder is remanded. FINDING OF FACT The Veteran’s dysthymic disorder did not begin during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than post-traumatic stress disorder, to include dysthymic disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to July 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in June 2018 and January 2020 where it was remanded for additional development. It now returns to the Board for adjudication. The Veteran seeks service connection for an acquired psychiatric disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran underwent an April 2012 VA examination, where he was diagnosed with dysthymic disorder. The Veteran’s VA treatment records reflect treatment for depressive disorder on a continual basis since as early as 2000. A January 2020 VA medical opinion was obtained. The examiner opined that because there was no documentation of in-service mental health complaint or treatment, a review of the Veteran’s mental health treatment records from 2013 to the examination did not contain any evidence linking the Veteran’s dysthymic disorder with service, and the Veteran’s dysthymic disorder was entirely attributable to various life events after service, it was therefore less likely than not that the Veteran’s dysthymic disorder was related to service. When considering the value of medical opinion evidence, the probative value of the opinion is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the January 2020 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran’s service and VA treatment records and is accompanied by a sufficient explanation as to why the Veteran’s dysthymic disorder is not related to service. Furthermore, there is no competing medical opinion of record. The Board thus finds that the January 2020 opinion is dispositive of the issue at hand. The Board assigns the opinion substantial probative weight. The Veteran had some medical training in service and his military occupational specialty was “Medical Aidman.” DD Form 2, Section VII. The Veteran has not asserted that this training would be sufficient to allow him to offer a competent opinion regarding his psychiatric condition, either to diagnose or render an etiological opinion, and has not attempted to do so. See, e.g., February 2012 Statement in Support of Claim for Service Connection for PTSD; September 2012 Notice of Disagreement; June 2015 VA Form 9. The preponderance of the evidence is against finding that the Veteran’s dysthymic disorder began during active service, or was otherwise related to an in-service injury, event, or disease. 38 C.F.R. § 3.303. The benefit of the doubt rule does not apply, and the Board concludes that the entitlement to a service connection for an acquired psychiatric condition, other than post-traumatic stress disorder, to include dysthymic disorder, is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran initially claimed service connection for post-traumatic stress disorder. The Board concludes that the issue must be remanded again. First, remand is necessary for additional record development. The record shows that the Veteran seems to have had two separate periods of active duty service, apparently from August 1973 to June or July 1975, and then from July 1975 to July 1978. The record does not contain any DD-214 for the first period of active service, although the DD-214 for the period ending July 1978 clearly indicates a one year, eleven-month prior period of active service and the Veteran’s service treatment records clearly show records generated in 1974. Nor does the claims file contain any records that would be present in a reasonably complete service record file, such as enlistment paperwork and orders to a foreign country. Because there has been no finding that the records are affirmatively missing under 38 C.F.R. § 3.159(e)(1), and because the Veteran has not exhausted his claim for an acquired psychiatric disorder based on an incident claimed during the 1973-1975 period, the Board will order a remand to attempt obtain these records. Second, an August 2012 finding of unavailability of stressor information was written. The finding acknowledges that the Veteran served from August 1973 through July 1978, but does not appear to have reviewed the Veteran’s DD-214 for the period beginning August 1973. Because the Veteran’s claims file does not contain this DD-214, or any service records from the first period, it is not clear that the stressor review considered all of the Veteran’s records. The Board will remand for additional stressor verification review once the Veteran’s service records have been located. Finally, the issue must be remanded to further develop the Veteran’s claim for post-traumatic stress disorder. The Veteran underwent a VA examination in April 2012. The VA examiner concluded that the Veteran did not meet the diagnostic criteria for post-traumatic stress disorder (PTSD) based on the criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and instead diagnosed the Veteran with dysthymic disorder. Although the VA examiner correctly evaluated the Veteran using the DSM-IV at the time of the examination, during the pendency of this appeal, the regulation, 38 C.F.R. § 4.125, was amended to require a diagnosis based on the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The regulation clarified that it would apply to applications for benefits that were pending before the VA, and not certified for appeal on or before August 4, 2014. 80 Fed. Reg. 14,308 (Mar. 19, 2015). The record shows that this matter was certified June 25, 2015. Accordingly, the Veteran should be evaluated under the criteria of the DSM-5. After reviewing the findings of the April 2012 VA examination, the Board finds that an additional examination would be necessary. The Veteran was evaluated as presenting certain symptoms that under the DSM-IV would not result in a finding of PTSD, but may under the DSM-5. For example, criterion C has been reformulated --- previously, meeting the criterion required at least three symptoms, but the new criterion C requires only two. The Veteran was diagnosed with efforts to avoid thoughts, feelings, or conversations associated with the trauma, and marked diminished interest or participation in activities; under the DSM-V criterion, the Veteran would now meet these criteria. Although the examiner concluded that the Veteran did not meet the criteria for PSTD under the DSM-IV, this does not necessarily mean that the Veteran does not meet the criteria for PTSD under the DSM-5. The examiner’s conclusion that the Veteran does not have PTSD applies the what is now an incorrect legally required standard. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Board will remand to obtain an adequate opinion once the stressor is verified. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include both of the Veteran’s period of active duty service from August 1973 to June or July 1975 to July 1975 to July 1978. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. If the records cannot be found, notify the Veteran consistent with regulations. 2. Once obtained, attempt to corroborate the Veteran’s in-service stressor, including the contention that the Veteran, while serving in Korea, encountered the body of a fellow soldier who had been shot. If more details are needed, contact the Veteran to request the information. 3. After the Veteran’s reported stressors have been developed, if verified, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner shall diagnose the Veteran using the criteria as set forth by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as required by regulation. If the examiner determines that the Veteran has not met the criteria for a diagnosis of PTSD at any point during the appeal period, the examiner must explain how the Veteran does not meet the criteria for a diagnosis of PTSD. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael D. Wagner, Associate Counsel 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.