Citation Nr: 21021413 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-09 982 DATE: April 12, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the probative evidence of record does not establish that the Veteran has a diagnosis of PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from December 1968 to July 1970, to include service in the Republic of Vietnam. The issue is on appeal from a January 2008 rating decision. The Veteran testified in May 2012 and February 2016 hearings before a Veterans Law Judge who is no longer with the Board. He testified more recently in December 2017 before the undersigned Veterans Law Judge. Transcripts of each of these hearings are in the claims file. By law, appeals can be assigned only to individual Veterans Law Judge or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when an appellant has had hearings before two separate Veterans Law Judges during an appeal, and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board of Veterans’ Appeals (Board) hearing has been held and the appeal is then ready for appellate review. An appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. See Arneson v. Shinseki, 24 Vet. App. 379 (2011); 38 C.F.R. § 20.707. At the Veteran’s December 2017 hearing, the Veteran waived his right to a hearing before a third Veterans Law Judge. The issue has been remanded numerous times by the Board for additional adjudication, most recently in August 2020. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also 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). In addition to the general requirements for service connection, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The Board notes that the version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders in use for purposes of VA examination and diagnosis changed in August 2014. See 38 C.F.R. § 4.130 (as in effect since August 4, 2014) (application of DSM-V); 38 C.F.R. § 4.130 (as in effect for the portion of this appeal prior to August 4, 2014) (application of DSM-IV). The DSM-V criteria may only be assigned after August 4, 2014. The DSM-IV criteria may be used at any time during the appeal, including after August 4, 2014, if application of DSM-IV after August 4, 2014 would be more favorable to the Veteran. However, mental health professionals “are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis.” See Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. 1. Service connection for PTSD The Veteran seeks service connection for PTSD. He asserts that he has PTSD as a result of active duty. The Veteran’s medical history is voluminous. VA treatment records demonstrate extensive counseling and therapy for multiple psychiatric disorders including PTSD. Notably, his PTSD diagnosis was often interwoven with a diagnosis of depression. In April 2013, the Veteran underwent a private mental health assessment by Dr. R.A.C. He reviewed the Veteran’s medical records and conducted an interview for the assessment. Dr. R.A.C. diagnosed the Veteran with PTSD, secondary to combat experiences and racially motivated attacks, which included being stabbed. Dr. R.A.C. added that the Veteran’s PTSD symptoms were severe enough to cause major employment difficulties, essentially rendering the Veteran unemployable. The Board notes that the Veteran was seen by Dr. R.A.C. for this sole assessment and that the private psychologist was not his treating mental health provider at any time. The Veteran was afforded a number of VA examinations including in December 2007, October 2015, April 2017, July 2019, April 2020, and October 2020. Importantly, each VA examiner throughout the years has opined that the Veteran does not have a DSM-IV or DSM-V diagnosis of PTSD. They also note inconsistent reports by the Veteran of his alleged PTSD stressors and suspicions of malingering based on the interviews conducted during each VA examination and the Veteran’s medical history. After a thorough review of the Veteran’s records, the October 2015 VA examiner explained that the Veteran’s medical history does not support a diagnosis of PTSD despite prior diagnoses. Pertinently, the October 2015 examiner explained that the prior diagnoses were established after unstructured interviews with the Veteran; diagnoses were based predominantly on subjective symptoms reported by the Veteran; and the Veteran’s receipt of treatment for PTSD, which is not a diagnostic criterion for PTSD. Unlike unstructured interviews, structured interviews significantly improved accurate diagnosis of PTSD, has demonstrated reliability and validity, and included the importance of holistically assessing the presence, frequency, and severity of a symptom. The examiner also noted that the Veteran’s reported stressors and symptoms had changed over the years to past providers (who had proffered PTSD diagnoses). Therefore, with no objective assessment of response style, the veracity of presented history and symptoms and subsequent diagnoses of PTSD were questionable. Furthermore, referring to Dr. R.A.C.’s private assessment, the October 2015 examiner clarified that the assessment contained no evidence of a structured interview to assess the Veteran’s PTSD symptoms nor did it reveal any objective psychological assessment. Finally, when asked to reconcile the conflicting data from the Veteran’s medical history regarding whether he has a current disability of PTSD, the October 2020 examiner explained that it was difficult to explain the Veteran’s actions as he was an unclear and inaccurate historian, his current and past cognitive status, and whether his current cognitive status had shifted from his past cognitive status due to his multiple chronic medical conditions. The examiner stated it would be mere speculation to discuss why the Veteran endorsed experiencing different symptoms at different times, and whether this was due to neurocognitive and memory issues, malingering, or just very poor insight and ability to communicate and articulate himself. Ultimately, after a thorough review of the Veteran’s medical history and conducting an in-person interview, the October 2020 examiner diagnosed the Veteran with depressive disorder, and not PTSD. The Board has considered the Veteran’s statements regarding his belief that he has a diagnosis of PTSD. The Veteran is competent to describe the circumstances and incidents of his period of service and allege circumstances that then occurred. However, he is a lay person and is not competent to diagnose or offer opinion as to the etiology of any current PTSD. The question regarding the diagnosis and etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for PTSD as there is no indication that the Veteran has a current PTSD diagnosis. As discussed above, the probative evidence demonstrates a lack of a PTSD diagnosis. The Board acknowledges the diagnoses of PTSD by VA providers and Dr. R.A.C. in his private assessment. However, as clarified by the October 2015 and October 2020 VA examiners, these diagnoses were provided after unstructured (and according to their medical peers, objectively less valid) interviews, and mercurial reports and presentation by the Veteran of his symptoms and stressors. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no current diagnosis of PTSD, service connection must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.