Citation Nr: 21026039 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-45 527 DATE: April 29, 2021 ORDER Service connection for an acquired psychiatric disability, excluding posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had a current psychiatric disability, excluding PTSD, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, excluding PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1978 until his discharge under honorable conditions in July 1979. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a May 2013 decision by the Cleveland, Ohio, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which reopened, confirmed and continued a prior final decision denying service connection for PTSD. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In a May 2019 decision, the Board reopened and denied the Veteran’s claim for service connection for PTSD. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) in which they stipulated the Board did not comply with VA’s duty to assist because it did not provide the Veteran with a VA examination as to other psychiatric disorders that may be encompassed by his claim consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2019). Importantly, the parties also stipulated that the Veteran was “not challenging the Board’s denial of service connection for PTSD . . . . Therefore, the parties respectfully request that the Court dismiss the appeal with regard to [that] issue[].” Although the parties did not address whether they were appealing the Board’s decision to reopen the Veteran’s claim for service connection, the Board finds that ruling was favorable to the Veteran and that the finding remains accurate. Therefore, the Board will continue its finding that new and material evidence exists to reopen the Veteran’s claim for service connection for an acquired psychiatric disability. Based on the JMPR submitted by the parties, the Court entered an Order on February 20, 2020, vacating the Board’s decision in part and remanding the matter to the Board for readjudication. In September 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination addressing the Veteran’s psychiatric disorders, if any, excluding PTSD, which the RO accomplished. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis In order to receive service connection for a psychiatric disability, VA regulation, 38 C.F.R. § 4.125(a), requires that all psychiatric diagnoses comply with the criteria in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020). The RO provided the Veteran with a VA-contracted medical examination in November 2020 from a licensed psychologist. During the examination, the Veteran reported witnessing a robbery in 1979 that occurred in front of his barracks. One of the robbers swung a bottle at him and another threw a cue ball at him. He told the examiner he was not afraid for his life at the time of the incident. Nevertheless, he still worried he might see the men again someday. He denied mood-related concerns, concentration problems, or any other symptoms associated with any mood or anxiety disorder. He reported “some suspiciousness, hypervigilance, and always being on guard.” He described a shooting incident in 2020 that brought back memories of the robbery in 1979. He denied suicidal ideations. He denied all other symptoms beyond those noted above. The examiner concluded that the Veteran did not have a psychiatric disability based on the DSM-5 criteria. Absent evidence to the contrary, the Board finds the November 2020 VA-contracted examiner was competent to exam and diagnose the Veteran. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and medical opinion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, relied on the DSM-5 criteria, and provided a well-reasoned medical judgment that connected the facts and conclusion. As there is no other medical evidence of record that contradicts the November 2020 VA-contracted examiner’s diagnosis, the Board finds it to be the most credible and probative evidence of record. The Board has considered the Veteran’s lay statements in relation to his belief that he may have a psychiatric disability. While the Board finds the Veteran competent to report any symptoms he experiences, such as anxiety, hypervigilance, or fear, without evidence showing that he has the necessary medical training or expertise to diagnose psychiatric disabilities, he cannot competently opine that he has a psychiatric disability. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). In addition, the Veteran’s medical records do not document a psychiatric disability in conformance with the DSM-5 during the appeal period. Accordingly, the Board finds the Veteran does not have a current psychiatric disability diagnosed in accordance with the DSM-5 as required by 38 C.F.R. § 4.125(a). Therefore, service connection is not warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.