Citation Nr: 21024411 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-51 817 DATE: April 22, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is denied. REMANDED The issues of service connection for gastroesophageal reflux disease (GERD) as secondary to the service-connected disability of lumbosacral strain with intervertebral disc syndrome and/or right knee torn medial collateral ligament, meniscal tear, and patellofemoral syndrome is remanded. FINDING OF FACT The Veteran is not diagnosed with an acquired psychiatric disability. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1975 to February 1995. The matter of entitlement to service connection for an acquired psychiatric disability was remanded by the Board of Veterans’ Appeals (Board) in December 2019 for further development. The development was completed and the matter is again before the Board. Service Connection for an Acquired Psychiatric Disorder The Veteran has claimed entitlement to service connection for an acquired psychiatric disorder. It has been alternatively referred to as PTSD and depression in various places in the record. The Board has broadly interpreted the Veteran’s claim to include any acquired psychiatric disorder as to not exclude any alternative diagnosis not expressly claimed by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service connection for a disability may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The preponderance of the evidence is against establishing the existence of a current disability. VA regulations require that for a mental disorder to be considered a current disability, there must be a diagnosis based upon the criteria provided in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association. 38 C.F.R. § 4.125 (a); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (finding compensation for a mental disorder requires a DSM-5 diagnosis). The Veteran’s treatment records note several positive screenings for depression, including in September 2011 and February 2015. The September 2011 positive screening was flowed up by the Veteran’s primary care provider and no diagnosis of a mental disorder was recorded. Medical examiners attempted to follow up on the February 2015 screening; however, there was no diagnosis made following the positive screening. Depression screenings since then have been negative. Additionally, the Veteran was examined by a psychologist in August 2020. The examiner concluded that the Veteran did not have a mental disorder that conforms with the DSM-5. The Veteran’s treatment records also note positive screenings for PTSD. An April 2012 treatment note indicates the Veteran reported he had a diagnosis for PTSD. There are no records that support a diagnosis of PTSD prior to April 2012. In June 2015, after a positive screening for PTSD, the Veteran saw a licensed clinical social worker. The treatment note includes the phrase “DSM-5: PTSD”; however, it is unclear as to what this note is referring as there is no formal diagnosis of PTSD or any mental disorder in the same record. Moreover, subsequent PTSD screenings are negative, and the Veteran’s subsequent records do not note a diagnosis of PTSD. The same August 2020 examination report mentioned above also stated that the Veteran did not meet the DSM-5 criteria for PTSD. The Veteran’s positive screenings for mental disorders have little probative value in establishing a current disability. They are not clinically confirmed and are not accompanied by formal diagnoses. Although the Veteran reported he had PTSD, there is no supporting evidence of this diagnosis or other mention of this diagnosis in treatment records. The June 2015 notes of “DSM-5: PTSD” is ambiguous at best, and the lack of a diagnosis in subsequent treatment records support a conclusion that it was not a diagnosis. Finally, the most probative evidence is the August 2020 examination report, which was completed by psychologist, that directly states that the Veteran does not meet the DSM-5 criteria for any mental disorder, to include PTSD. The examination report was based on an examination of the Veteran and a review of the records, including the positive screenings for depression and PTSD. As the most probative evidence does not indicate a DSM-5 diagnosis of a mental disorder, the preponderance of the evidence is against finding the Veteran has a current mental disability. Therefore, the first element of service connection, as outlined in Shedden, has not be met and service connection cannot be granted. REASONS FOR REMAND Entitlement to PTSD is remanded. This matter is REMANDED for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) vacating the 2019 Board denial of entitlement to service connection for GERD. Specifically, the JMPR directed that the Board address (1) the theory of secondary service connection based on the Veteran’s use of nonsteroidal anti-inflammatory drugs (NSAIDs) to treat service-connected disabilities and (2) whether the record raised the theory of secondary service connection based on obesity as an intermediate step between the Veteran’s service connected disabilities and the development of GERD. The Board has determined further development is needed to address the theory of secondary service connection based on use of NSAIDs. The June 2014 medical opinion that addresses this theory is incomplete because it does not address whether the Veteran’s use of NSAIDs aggravated the Veteran’s GERD. It only addresses proximate causation by NSAIDs. The Board must address both proximate causation and aggravation to adjudicate a claim of service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Therefore, an addendum opinion is needed to address aggravation. Additionally, the Board has determined that the theory of secondary service connection based on obesity as an intermediate step has been reasonably been raised by the record. The June 2014 medical opinion states that the Veteran’s GERD may be related to his obesity. This in combination with an April 2011 treatment record that notes the Veteran reported that his inability to exercise due to knee pain contributed to his weight loss, reasonably raise the theory. A medical opinion is needed to determine if the Veteran’s obesity is an intermediate step between the development or aggravation of the Veteran’s GERD and his service-connected disabilities. The remand directives follow. 2. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claimed left leg disability that is not already in VA’s possession. 3. Associate with claims file, all records in VA’s possession relating to the treatment of Veteran’s left leg disability. 4. After any outstanding evidence is associated with the claims file, return the claims file to the June 2014 VA examiner, and request he re-review the claims file and respond to the inquiry below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum opinion as to the etiology of the Veteran’s GERD. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinion: (a.) Whether the Veteran’s GERD was caused by the Veteran’s use of NSAIDs or other medication used to treat any service-connected disorder. (b.) Whether the Veteran’s GERD was aggravated, made worse, by the Veteran’s use of NSAIDs or other medications used to treat any service-connected disorder. (c.) Whether any of the Veteran’s service-connected disabilities caused the Veteran to become obese. (d.) Whether any of the Veteran’s service-connected disabilities aggravated, made worse, the Veteran’s obesity. (e.) If the examiner fines the Veteran’s service-connected disabilities either caused or aggravated the Veteran’s obesity, whether the obesity or aggravation of obesity was a substantial factor in causing GERD. (f.) If the examiner finds the obesity or aggravation of obesity was a substantial factor in causing GERD, whether the current disability would not have occurred but for obesity caused or aggravated by the service-connected disabilities. IN ADDITION TO ANY RECORDS ADDED TO THE FILE AS A RESULT OF THE ABOVE-DIRECTED DEVELOPMENT, the examiner’s attention is drawn to the following: * A VA nursing note, dated May 13, 2019, indicating that Veteran made the statement: “I cannot because of my back and both knee pain[sic]. I had a gym membership, but I had to let it go. I was hurting too bad. I know I need to lose weight and I will as soon as I can have surgery to get rid of the pain.” *A VA primary care follow-up note, dated April 13, 2017, stating: “Morbid Obesity -Goal less than 30[.] Discussed weight loss through diet and exercise, discussed decreasing portions sizes, tracking calorie intake[.] Discussed the impact obesity has on weight bearing joints[.] Current Barrier/Barriers to exercise: Bil knee pain/lower back.” *A VA primary care note, dated August 4, 2016, stating: “morbid obesity: veteran has lost weight during clinic interval, he is down 322 to 309. He is receiving steroid injections in spine and has been eating more, difficult to exercise with chronic back pain.” *A June 2014 VA medical opinion stating the Veteran’s GERD “is more likely than not due to obesity and anatomical dysfunction of the esophageal sphincter.” *A VA primary care follow-up note, dated April 18, 2011, indicating: “[t]he patient returns with the following new complaint: R knee painful since the army days. Had arthroscopic surgery. Trying to postpone knee replacement -uses ibuprofen. Limits exercise tolerance and contributes to weight problems.” 5. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.