Citation Nr: 21014922 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-25 800 DATE: March 16, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder, to include PTSD, began 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, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1976 to December 1979. The Board previously remanded this claim in April 2018, February 2020 and October 2020. There has been substantial compliance with the prior Board remands, including the October 2020 remand, and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has an acquired psychiatric disability that he has generally characterized as PTSD. The record before the Board also includes other psychiatric diagnoses, including anxiety and depression. The Board’s April 2018 remand cited Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), and stated that it had taken an expansive view of the Veteran’s claim and characterized it as a claim for an acquired psychiatric disorder. Pursuant to the Board’s April 2018 remand, in September 2018 VA requested that the Veteran submit specific information regarding the precise nature and time period for his alleged stressors, to include the report of witnessing a drowning in Japan, an incident of live fire training in Japan, an incident involving a broken fuel line while aboard a ship, and an incident involving the suicide of a sergeant at Camp Schwab. The Veteran failed to respond to the request. As a result, VA has been unable to obtain potentially favorable evidence corroborating the Veteran’s stressors. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). In addition, 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. 38 C.F.R. § 3.304 (f). The Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of an acquired psychiatric disability, the preponderance of the evidence weighs against finding that the Veteran’s psychiatric disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are negative for relevant complaints, symptoms, findings or diagnoses. During a November 2008 VA psychiatric evaluation, the Veteran stated that he was sent for a psychiatric evaluation during active duty but did not want to accept that anything was wrong with him. The post-service medical records are negative for relevant psychiatric complaints, symptoms, findings or diagnoses for many years after the Veteran’s separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The earliest relevant medical evidence of post-service complaints, symptoms, findings or diagnoses is an October 2006 VA diagnosis of chronic PTSD and depression, NOS. Thereafter, the Veteran’s VA treatment records identify several different diagnoses, including psychotic disorder, NOS; r/o schizophrenia, paranoid type vs. schizoaffective disorder, in 2008; psychotic disorder, NOS, in 2009; depressive disorder in 2009; anxiety and depressive disorder, NOS, in 2017; depressive disorder, NOS, in 2019; and anxiety, depression, unspecified anxiety disorder, and unspecified depressive disorder, in 2020. In an April 2011 statement, J. Ward, RN, stated that she had been around the Veteran for many, many years. She identified what she described as PTSD symptoms that the Veteran displayed. She did not opine as to the etiology of any psychiatric disorder. In a July 2020 VA medical opinion, the examiner stated that the Veteran did not have a current diagnosis of a psychiatric disorder. The examiner stated that a review of the record revealed inconsistencies with the Veteran’s PTSD status. Specifically, the examiner noted a negative PTSD screening in 2006 and a positive PTSD screening in 2008, an April 2010 private provisional diagnosis of PTSD, and multiple denials of psychosis in the Veteran’s treatment records. The examiner opined that it was less likely than not that the Veteran’s claimed acquired psychiatric disorder was related to his active military service because the Veteran did “not have a current mental disorder diagnosis that meets DSM criteria.” The Board’s October 2020 remand found the July 2020 VA medical opinion to be inadequate. It was not clear whether the examiner considered the evidence that the Veteran was diagnosed with depressive disorder NOS and anxiety disorder and that he was prescribed anti-depressants. The Board pointed out that the current disability requirement for service connection was satisfied if the Veteran had a disability at any point during the pendency of the claim, even if the disability completely resolved. Since the Veteran had a diagnosis of depressive disorder NOS and anxiety disorder in 2007, an opinion regarding the etiology of the Veteran’s depression and anxiety must still be obtained. An October 2020 VA medical opinion provides that the Veteran’s PTSD was less likely than not incurred in or caused by the Veteran’s service, including his claimed stressors. The examiner explained that there was no in-service injury, event or illness and the Veteran did not have a current mental disorder diagnosis that met DSM criteria. VA requested clarification of this medical opinion in October 2020. In a January 2021 addendum, the examiner specified that she had reviewed the Veteran’s claims file. The evidence included VA treatment records, a March 2020 VA treatment note that the Veteran reported increased anxiety and depression over the past six months, the July 2020 VA examination providing no diagnosis and the October 2020 remand. The addendum also includes the clarification request itself, which included a detailed medical history. The examiner recounted that the Veteran was diagnosed with PTSD and depression, NOS, per an October 2006 VA treatment note, and reported anxiety since he was in the Marines. He was diagnosed with depressive disorder, NOS, per a September 2008 VA treatment note, and reported that his depression was due to problems from when he was in the Marines. The examiner observed that despite this assertion, there appeared to be no evidence of mental health treatment prior to 2006. She stated that, given the on and off treatment for mental disorder symptoms, the lack of a mental disorder diagnosis per the July 2020 VA examination, and the lack of evidence of mental health treatment during service, it was not possible to determine the nature or etiology of the Veteran’s symptoms without resorting to speculation. The Court has provided guidance as to when VA can accept an examiner’s statement that an opinion cannot be provided without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Specifically, the Court held that simply concluding that the etiology of a disability could not be resolved without speculation without providing any further explanation was inadequate. The Court examined “how thoroughly... an examiner [must]... explain the essential medical reasoning before the Board may rely on his or her representation that an opinion cannot be rendered ‘without resort to mere speculation.’” The Court stated that an examination report “should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner’s remarks whether it cannot be determined from current medical knowledge... or that the actual cause cannot be selected from multiple potential causes.” Id. at 390. In this case, the January 2021 examiner provided a rationale for her determination that it was not possible to determine the nature or etiology of the Veteran’s symptoms without resorting to speculation, pointing to relevant medical findings. The Board acknowledges that she cited the July 2020 VA examination report later found by the Board to be inadequate. Nevertheless, she did not cite it for the proposition that the Veteran had no current diagnosis, which is what the Board found objectionable, but rather as support for her determination that it was not possible to determine the nature or etiology of the Veteran’s symptoms without resorting to speculation. Even ignoring the reference to the July 2020 VA examination report, the examiner’s rationale still refers to the Veteran’s negative service treatment records, the lack of evidence of mental health treatment prior to 2006, and the on and off treatment for his mental disorder symptoms. Moreover, in making this determination, the examiner reviewed the Veteran’s claims file and VA treatment records, and the detailed medical history provided in the October 2020 clarification request. Thus, the Board finds that the examiner’s determination that it was not possible to determine the nature or etiology of the Veteran’s symptoms without resorting to speculation is sufficiently supported by a thorough rationale. The Board need not obtain further medical evidence where the medical evidence “indicates that determining the cause is speculative.” See Clemons, supra at 6. In this case, it is clear that the procurable and assembled data was fully considered by the January 2021 VA examiner. See Jones, supra. Moreover, neither the Veteran nor his representative has ever produced a medical opinion or medical evidence that contradicts the conclusion of the January 2021 VA examiner. As such, there is no competent medical evidence to establish a nexus between the Veteran’s current acquired psychiatric disability and any documented event or incident of service. The Board recognizes that the Veteran believes that his acquired psychiatric disability is related to an in-service injury, event, or disease. As a layperson he is not competent to opine as to this complex medical matter. Specialized medical training and expertise are required. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2021 VA medical opinion that it was not possible to determine the nature or etiology of the Veteran’s symptoms without resorting to speculation. In light of the above, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.