Citation Nr: 21015456 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-13 335 DATE: March 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left leg post-tourniquet syndrome is remanded. FINDINGS OF FACT 1. The Veteran was diagnosed with PTSD during or approximate to the pendency of the claim. 2. The Veteran's PTSD has not been etiologically linked to a verifiable stressor during or coincident with his military service. 3. The preponderance of the evidence of record is against a finding that the Veteran's acquired psychiatric disorders, to include PTSD, anxiety, and depression, were incurred in service or are otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1969 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, November 2017, and January 2020, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of a diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has PTSD that manifest during active service or is otherwise related to active service nearly 50 years ago. Specifically, the Veteran has associated his PTSD to a number of in-service stressors that occurred while he was stationed in Korea, including being under attack by an enemy sniper while driving; being physically assaulted with a knife in an alley by four soldiers; almost being run off the road while driving for a superior officer; witnessing a helicopter killing North Korean infiltrates on a hill above his compound; and diverting his vehicle around horrific civilian bus accidents. See, e.g., October 2015 VA Form 21-0781. A review of the Veteran’s service treatment records does not reveal any complaints of, treatment for, symptoms of, or a diagnosis for an acquired psychiatric disorder during service. In December 1983, as part of an evaluation for a labor matter related to a back injury, the Veteran was diagnosed with an adjustment disorder with mixed emotional features and mild psychiatric disability. In a December 2009, a psychological evaluation was conducted for purposes of Social Security disability compensation. The Veteran was diagnosed with PTSD (chronic and severe). The examiner stated that the Veteran reported that he suffered numerous life-threatening events to himself and witnessed injuries and death to others. The examiner stated that the Veteran demonstrates physiological and psychological reactivity to both internal and external events that represent aspects of the original traumata. The Veteran was provided a VA examination for PTSD in May 2010. The examiner stated that he could not accurately assess the Veteran’s symptoms and provide an adequate diagnosis nor speak to etiological factors without resorting to mere speculation. The examiner explained that the Veteran matches the criteria for PTSD, but his observed behavior versus his reports are inconsistent. The examiner also stated that the Veteran’s medical records indicate the presence of “questionable validity.” In a June 2010 primary care note, the Veteran reported that he is under tremendous stress due to money and his sick partner. The Veteran was assessed with anxiety and placed on trial medication. An April 2011 primary care note included an assessment/impression of depression. The Veteran indicated that he was not suicidal and did not wish to speak to a mental health professional. In April 2011, the Veteran obtained a statement from the psychologist that provided the December 2009 evaluation. The psychologist reaffirmed that the Veteran met the DSM-IV criteria for a diagnosis of PTSD. In April 2011, the Veteran obtained a statement from a diagnostic consultant. The consultant diagnosed the Veteran with PTSD. The consultant found that it is far more likely than not that the Veteran’s PTSD is directly and causally related to his military service. The consultant did not discuss the Veteran’s stressors or indicate what, if any, diagnostic criteria was used to provide the diagnosis. The Board notes that the consultant indicated that his expertise insofar as PTSD is concerned is the recognition of PTSD for the purpose of referral to the appropriate specialist. In an August 2011 primary care note, the Veteran reported having a lot anxiety and insomnia due to multiple financial issues. The Veteran was provided a VA examination for PTSD in May 2016. The examiner diagnosed the Veteran with a personality disorder NOS with avoidant features. The examiner did not find that the Veteran met the criteria for a diagnosis of PTSD. The examiner found that it is less likely as not that any psychiatric disorder had its onset during the Veteran’s active service. The examiner noted the absence of in-service and post-service treatment records of a mental health condition. The RO obtained a behavioral health medical opinion in June 2019. The examiner found that the Veteran’s PTSD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s current diagnosis meets the DSM criteria, but there is no evidence that it is related to the Veteran’s military service. The examiner explained that there is no report of mental health issues during service and no consistent report of ongoing mental health problems since military service. The examiner stated that, while the Veteran was diagnosed with PTSD per the December 2009 evaluation, there is no corroborating evidence that supports that the diagnosis was incurred in or caused by military service. The examiner also reviewed the Veteran’s 1983 diagnosis for an adjustment disorder with mixed emotional features. The examiner found that it is less likely than not incurred in, caused by, or otherwise related to service as the stressors reported are associated with physical and work issues. The examiner explained that the diagnosis was associated with a strained relationship with his employer and a musculoskeletal injury. The examiner noted that the diagnosis was attributed to mental health concerns that occurred post-military and military stressors were not noted in the 1983 evaluation. In an August 2016 medical evaluation, PTSD with anxiety was noted. The examining physician stated that it is doubtful that the Veteran strictly has PTSD. The Veteran did not wish to speak to a mental health professional. The Veteran was provided a VA examination for mental disorders in September 2020. The examiner diagnosed the Veteran with a personality disorder with avoidant features. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner found that the Veteran does not have a diagnosis of an acquired psychiatric disorder that is at least as likely as not incurred in or caused by service. The examiner found that there is also no evidence that any prior diagnosis of PTSD, anxiety, or depression is due to the events of service. The examiner found that it was less likely than not (less than 50% probability) that an acquired psychiatric condition was incurred in or caused by an in-service injury, event, or illness. The examiner stated that, upon review of the evidence of record, he simply did not find any corroborating evidence of a manifestation of an acquired psychiatric disorder during service, any manifestation due to any events of service, or any corroborating evidence of the events the Veteran claims as etiological of PTSD. The examiner noted that there was no evidence that the Veteran experienced a psychiatric issue during service and that he was not diagnosed with an acquired psychiatric condition from discharge in 1971 until 2009. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). Alternatively, 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 posttraumatic stress disorder 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. 38 C.F.R. § 3.304 (f)(3). As an initial matter, the Board finds that the Veteran was diagnosed with PTSD under DSM-IV criteria during the pendency of the appeal. See December 2009 evaluation and April 2011 statement/addendum. While the Board acknowledges the lack of a PTSD diagnosis in the Veteran’s treatment records and the May 2010, May 2016, and September 2020 VA examinations, a Veteran satisfies the current disability requirement if he has such disability at any time during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's records and statements indicate that the Veteran was not engaged in combat. Therefore, service records or other evidence are required to corroborate the Veteran's testimony or statements regarding the occurrence of alleged stressors. The Board notes that significant efforts have been made to corroborate the Veteran's stressors, including several Board remands. See March 28, 2016 Stressor Memorandum from VA Appeals Management Center. Unfortunately, these searches and additional development did not reveal any evidence that might corroborate the Veteran's testimony regarding his PTSD stressors from more than 50 years ago. VA has accepted the Veteran's testimony and statements. However, apart from the Veteran's statements, there is no evidence of record in support of any of his claimed stressors. As discussed above, if a claimed stressor is related to the Veteran’s fear of hostile military or terrorist activity, lay testimony alone may establish the occurrence of the claimed in-service stressor when it is consistent with the places, types, and circumstances of the Veteran's service. See 38 C.F.R. § 3.304 (f)(3). Here, the Veteran statements suggest that some of the Veteran’s claimed stressors may be related to a fear of hostile military or terrorist activity. However, as required by 38 C.F.R. § 3.304 (f)(3), a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, has not confirmed that the claimed stressors related to a fear of hostile military or terrorist activity are adequate to support a diagnosis of posttraumatic stress disorder. The May 2010, May 2016, and September 2020 VA examinations did not find a diagnosis of PTSD. The June 2019 VA examination found no nexus between the Veteran’s 2009 diagnosis for PTSD and active service. Accordingly, the Board finds that there is no verified stressor upon which a diagnosis of PTSD may be based, and the claim for PTSD must therefore be denied. 38 C.F.R. § 3.304(f). The Veteran’s statement, overall, have not been entirely consistent. Post-service treatment records strongly suggest that the Veteran’s problem does not stem from service, but from post-service stressors (financial issues). Simply stated, there is significant factual evidence against this claim contained in the post-service records that the Board can not ingnore. The Board concludes that, while the Veteran received a diagnosis for PTSD during the pendency of the claim, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. As to depression and anxiety, the preponderance of the evidence is against finding that these conditions began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. The Veteran received assessments or impressions of depression or anxiety in June 2010, April 2011, and August 2016. However, none of these assessments related the Veteran’s depression or anxiety relate to service. Indeed, no etiological opinions or suggestions are contained in the record that relate the Veteran's anxiety or depression to service. Additionally, the September 2020 VA examiner found that there is no evidence that any prior diagnosis of anxiety or depression is due to the events of service. The Board also notes that the Veteran was diagnosed with a personality disorder during the pendency of the claim. However, service connection may not be awarded for personality disorders. See 38 C.F.R. § 3.301. Although service connection may be granted for disability due to a superimposed disease or injury, none are shown in this case. In reaching its decision, the Board acknowledges that the Veteran is competent to report symptoms and history of treatment. However, he is not, as a lay person, competent to make medical conclusions such as diagnose himself with a psychiatric disorder or determine the etiology of such disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The May 2010, May 2016, June 2019, and September 2020 VA examinations (overall) provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion. The Board notes that the September 2020 VA examination provided a long, detailed, and comprehensive review of all the Veterans records. The Board finds the opinion of the September 2020 examiner to be probative as to the etiology of the Veteran's acquired psychiatric disorders. The examination was supported by a compelling rationale; a detailed clinical interview; a thorough review of the Veteran's record and relevant history; and, most importantly, some of the Veteran's own statements within the evaluation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is important for the Veteran to understand that service connection for PTSD has unique evidentiary requirements. See 38 C.F.R. § 3.304 (f). The Board’s decision does not suggest that the stressors cited by the Veteran did not occur. Rather, the available evidentiary record is simply insufficient to verify non-combat stressors based on the statements of the Veteran alone. The record does not contain service records or other evidence to corroborate the Veteran’s statements and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, has not confirmed that the claimed stressors are adequate to support a diagnosis of PTSD based on fear of hostile military or terrorist activity. The Board also notes that record does not show a diagnosis for PTSD until almost 40 years after service. The Veteran’s service records do not show any complaints of, treatment for, symptoms of, or a diagnosis for an acquired psychiatric disorder. Additionally, while Veteran was assessed for mental health conditions on several occasions, his post-service treatment records contain very few medical records related to mental health conditions. Given the records before it, the Board finds the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. Furthermore, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for left leg post-tourniquet syndrome. The Veteran claims entitlement to compensation under the provision of 38 U.S.C. § 1151 for left leg post-tourniquet syndrome. Specifically, he argues that a tourniquet that was placed on his left leg in connection with a February 2009 left knee surgery performed at the Viera, Florida VA Outpatient Clinic was done so improperly, and that he developed left leg post-tourniquet syndrome as a result. He alleges that VA failed to take appropriate precaution and his left leg was in the tourniquet for too long. See April 2013 VA Form 9 Regrettably, additional development is necessary before the Veteran's claims can be adjudicated. The Veteran’s May 2010 VA examination, with July 2010 and January 2011 addendums, and October 2010 VA examinations found that the Veteran suffered from additional disability (left leg tourniquet syndrome) following the February 2009 surgery. A June 2016 VA medical opinion addressed whether the development of post-tourniquet syndrome was foreseeable, given the Veteran’s history. A June 2020 VA examination for peripheral nerve conditions was unable to confirm a current chronic diagnosis associated with the Veteran’s February 2009 surgery. Unfortunately, none of the VA opinions of record addressed whether VA’s use of a tourniquet during the Veteran’s February 2009 surgery represents carelessness, negligence, a lack of proper skill, and error in judgment, or a similar instance of fault. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Given the deficiencies discussed above, the Board finds that the prior VA examinations were not adequate and that a remand is required to obtain an additional medical opinion regarding his §1151 claim. See 38 U.S.C. § 5103(a); Barr v. Nicholson, 21 Vet. App. 31 (once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one). This matter is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. 2. Obtain an opinion from an appropriate clinician regarding the Veteran's claim for entitlement to compensation under 38 U.S.C. § 1151 for left leg post-tourniquet syndrome. Specifically, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed additional disability, caused or aggravated by the Veteran's February 2009 surgery, was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment. The examiner should address any additional disabilities, including left leg tourniquet syndrome, associated with the Veteran’s 2009 surgery that were diagnosed during or approximate to the pendency of the Veteran’s claim (filed in December 2009). A complete rationale for any opinions expressed should be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran's February 2009 surgery and provide a rationale for all conclusions reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completion of the aforementioned, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.