Citation Nr: 21023140 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-16 284 DATE: April 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (“PTSD”), an anxiety disorder not otherwise specified (“NOS”), a panic disorder with agoraphobia, and a depressive disorder NOS is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against the finding that the Veteran has a current diagnosis of PTSD or had one at any time during the pendency of the claim or recent to the filing of the claim. 2. The preponderance of the evidence is against the finding that the Veteran’s acquired psychiatric disabilities, to include an anxiety disorder NOS, a panic disorder with agoraphobia, and a depressive disorder NOS are related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (“PTSD”), an anxiety disorder not otherwise specified (“NOS”), a panic disorder with agoraphobia, and a depressive disorder NOS have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1980 to December 1982. This matter comes before the Board of Veteran’s Appeals (“Board”) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Board remanded this matter in May 2015, May 2017, and January 2018. In the January 2018 Board’s remand, the RO was directed to obtain outstanding VA treatment records, relevant records from the United States Social Security Administration (“SSA”), and a new VA examination on the nature and etiology of any currently diagnosed psychiatric disorder. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the January 2018 remand. See Stegall, 11 Vet. App. at 271; see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (“PTSD”), an anxiety disorder not otherwise specified (“NOS”), a panic disorder with agoraphobia, and a depressive disorder NOS is denied. The appeal period for the issue on appeal begins from September 2009, when the Veteran filed a claim of entitlement to service connection for PTSD and asserted that his claimed condition is related to his active service. Since there are indications of diagnosis of mental disorders other than PTSD in the record, the Board recharacterized the issue as seen above to include other diagnosed mental disorders and allow for the most favorable review of the evidence and the claim. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of the record). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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 11630, 1166 -67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA must determine 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, 53-54 (1990); 38 C.F.R. § 3.102. PTSD The Veteran claims that he suffers from PTSD due to serving aboard a Navy ship because he was concerned that his ship could be attacked. 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). For cases certified to the Board on or after August 4, 2014, the diagnosis of PTSD must be in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5), otherwise DSM-IV is applicable. See 38 C.F.R. § 4.125(a); 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015). This case was certified to the Board before August 4, 2014; hence DSM-IV is applicable. The Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has undergone three VA examinations since he filed the claim. During the March 2016 examination, the examiner diagnosed the Veteran with unspecified depressive disorder but not with PTSD under both DSM-IV and DSM-5 criteria. The examiner noted that the Veteran received treatment for anxiety and panic attacks at Mobile Public Mental Health in 2005, but the record does not indicate that he was diagnosed with PTSD. During the second examination in June 2017, the examiner did not diagnose PTSD or any other mental disorder under both DSM-IV and DSM-5. The examiner also noted that there was no evidence of past diagnosis of PTSD in the record. Also, during the recent March 2018 VA examination, the Veteran was not diagnosed with PTSD under DSM-IV and DSM-5 criteria. The careful review of all treatment records, including medical records from SSA does not indicate any diagnosis of PTSD. Instead, the evidence of record indicates that the Veteran received treatment during the years 2004 to 2007 for mental disorders, including depression and anxiety but not PTSD. Hence, there is no indication that the Veteran was diagnosed with PTSD at any time during the pendency of the claim or recent to the filing of the claim. The Board acknowledges that the Veteran may sincerely believe that he has current diagnosis of PTSD, however, he is not competent to provide a diagnosis in this case. The issue is medically complex, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Consequently, the Board gives more probative weight to the competent medical evidence, including VA medical examinations and all treatment records that do not indicate any diagnosis of PTSD. Since the first element of service connection for PTSD is not met, the analysis of in-service stressor or any relationship with the Veteran’s active service is not necessary. The preponderance of the evidence of record is against the finding that the Veteran has a current diagnosis of PTSD or had one at any time during the pendency of the claim or recent to the filing of the claim. Acquired psychiatric disorders other than PTSD: As described above there are indications in the record that the Veteran has been diagnosed with psychiatric disorders other than PTSD, hence the question for the Board is whether the Veteran has any current mental disorder that is at least as likely as not related to an in-service injury, event, or disease. The Veteran was not diagnosed with any psychiatric disorder in June 2017, and March 2018 VA examinations. However, a VA examiner diagnosed the Veteran with unspecified depressive disorder during March 2016 examination. Also, the January 2009 VA treatment record noted anxiety, and a panic disorder with agoraphobia. The June 2013, June 2014, December 2014, and February 2016 VA treatment records noted an anxiety disorder NOS, and a depressive disorder. Hence, there is sufficient indication that the Veteran has been diagnosed with an anxiety disorder NOS, a panic disorder with agoraphobia, and a depressive disorder NOS during the appeal period, which adequately substantiates the first element (the existence of current disability) that is required for entitlement to service connection. As far as in-service incurrence or aggravation of a mental disorder is concerned, the Veteran reported mild depression and excessive anxiety over his mother’s health in December 1982 separation examination. There is no other indication of psychiatric disorder in the service treatment records. Regarding in-service stressor, the Veteran has asserted that he was deployed on the Navy ship, USS Detroit, when another ship, USS Nimitz, was fired upon by Libya, and he started believing that his ship could be attacked. The service treatment records, and service personnel records do not indicate if the Veteran’s ship was ever under attack, or the Veteran ever received any treatment regarding his fears about possibility of an attack. However, based on notation of mild depression and excessive anxiety in separation examination, the Board finds the second element (in-service incurrence or aggravation of a disease or injury) of service-connection for acquired psychiatric disorders other than PTSD is met. Regarding a causal relationship between the acquired psychiatric disorders other than PTSD and the Veteran’s active service, the VA examiner diagnosed the Veteran with unspecified depressive disorder during March 2016 VA examination. However, the examiner opined that the Veteran’s depression could relate to his delicate medical situation, morbid obesity, and heart valve replacement. The Veteran reported that he had received treatment for his anxiety and panic attacks in the past, but he denied anxiety or depression during the examination and only reported anger at his children and some insomnia. Also, that his heart disease and mother’s death have been sources of the Veteran’s despair. During June 2017 VA examination, the examiner did not diagnose the Veteran with any mental disorder and noted that the Veteran was not receiving any treatment for any claimed mental condition. The examiner noted past depressive disorder and history of significant heart disease requiring surgery. Also, in March 2018 VA examination, the examiner did not diagnose any mental disorder and noted that the Veteran was not taking any psychotropic medications. However, the examiner also noted that the Veteran was irritable and anxious as he worried that his mechanical heart valves would malfunction. The Veteran focused on the sound of his artificial heart valves at times and became concerned that the valves were functioning too fast. He denied generalized anxiety and depression. The examiner found no diagnosis of PTSD or any other mental disorder under DSM-5 or DSM-IV and opined that the Veteran’s symptoms of mild anxiety were neither due to stressors, nor service, but rather his heart condition. The examiner further opined that the Veteran’s symptoms would not be consistent with the diagnoses of anxiety, depression, sleep disturbance, or other mood or anxiety disorder. Besides reviewing VA examinations, the Board carefully reviewed other evidence of record and found no indication that the Veteran’s diagnosed mental disorders during appeal period were somehow related to his military service. The notation of mild depression and excessive anxiety in separation examination in 1982, clearly indicates that these conditions were due to the Veteran’s worries about his mother’s health. The SSA medical records associated with the claims file, contain a March 2007 letter from the Veteran’s psychiatrist, Dr. Saitz from Mobile Mental Health Community Counseling Center, which indicates that the Veteran received an artificial heart valve replacement in September 2003 and soon afterwards started experiencing depression and panic attacks brought on by anxiety because the ticking noise made by the valve would slow down and then start up very rapidly. The Veteran would immediately panic and go to Emergency Room thinking he was about to die; and had been placed on medications for his mental condition. The psychiatrist further noted that whenever Veteran’s heart valves made any type of noise, he began to perspire, got weak and felt as if he was about to die. The same condition was noted in September 2008 VA treatment record, where the Veteran reported that he had a valve replacement in 2003 and when he moved around it started clicking fast and he thought he was having a heart attack. He also claimed that when he heard the clicking sound, he began to panic. During February 2009 VA treatment, the Veteran reported fear of dying and reported that ticking of heart escalated to the point of panic. The examiner noted a panic disorder with agoraphobia. The Board acknowledges that the Veteran may sincerely believe that his mental disorders are related to his service, however, he is not competent to provide a medical opinion in this case. The issue is medically complex, and the Veteran has not demonstrated that he has the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Furthermore, as noted above, there are many instances in the evidence of record, where the Veteran himself reported that his fear of death due to his nonservice-connected heart condition causes anxiety and depression. Hence, the Board concludes that, even though the Veteran does not have current diagnosis of an anxiety disorder NOS, a panic disorder with agoraphobia, and a depressive disorder NOS. However, he had these disorders during appeal period, and evidence shows that he had mild depression and excessive anxiety over his mother’s health condition during service. Nonetheless, the preponderance of the evidence of record weighs against the finding that the Veteran’s psychiatric disorders are otherwise related to an in-service injury, event, or disease. Preponderance of the evidence is against the claim. Consequently, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder NOS, a panic disorder with agoraphobia, and a depressive disorder NOS is denied. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.