Citation Nr: 21026430 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-26 839 DATE: May 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for testicular cancer, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran has not been diagnosed with an acquired psychiatric disorder, to include PTSD, in conformance with the DSM-5. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in November 2018 for further development. The Board is satisfied that there was substantial compliance with the prior remand with regards to the service connection claim for an acquired psychiatric disorder. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As an initial matter, during the course of the appeal the regulations pertaining to psychiatric disorders were amended. See 79 Fed. Reg. 45,093 (Aug. 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the DSM-5, as opposed to the DSM-IV. Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran's claim was pending before the RO and not the Board on August 4, 2014, whether the Veteran has a diagnosis of PTSD will be determined based on the criteria in the DSM-5. The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection for a psychiatric disability requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5. 38 C.F.R. § 4.125 (a). Military personnel records show that the Veteran was awarded the Army Commendation medal in connection with military operations against a hostile enemy force in the Republic of Vietnam and the Combat Infantryman Badge. In a January 2014 report, Dr. Paul Yocom conclusively stated that the Veteran had supporting military history and symptoms of PTSD, including insomnia, sleep deprivation, anxiety, isolation, memory loss, hypervigilance, depression, and agoraphobia. He did not state whether the Veteran had PTSD that conformed with the DSM criteria or the basis for his statement. In a January 2014 psychological assessment, Dr. Wende Anderson diagnosed the Veteran with PTSD and depression based on the DSM-IV criteria. Her diagnosis was based on a clinical interview, MMPI-2 test results, and review of the records, the latter of which consisted of the Veteran's DD 214 and list of current medications. She noted that the Veteran had been sent to Vietnam approximately six months after his classmates to testify at a court martial, which induced some guilt in him. He also related concerns of only serving in Vietnam for three months. Dr. Anderson found that the Veteran's possession of a Combat Infantryman Badge was sufficient evidence to confirm that he was confronted with event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, involving intense fear, helplessness, or horror and did not provide any further details regarding the Veteran's in-service stressor. She found that the Veteran had recurrent intrusive thoughts (i.e., seeing children by the road and wondering if they had a grenade or were begging for c-rations), reexperiencing in reaction to unanticipated loud noises (i.e., memories of being out and pinned down in a sniper attack), avoidance behavior, inability to recall important aspects of trauma, feelings of detachment or estrangement from others, insomnia, irritability, concentration problems, hypervigilance, mood state consistent with alexithymia, fatigue and loss of energy, feelings of worthlessness and survivor's guilt, cognitive difficulties (diminished ability to think and indecisiveness), and homicidality. She opined that the Veteran's psychiatric symptoms were as likely as not service connected. In a July 2014 statement in support of claim for PTSD, the Veteran only stated that he was awarded the Combat Infantryman Badge, so VA accepted his stressor with no further details. In a September 2014 VA examination, the examiner found that the Veteran did not have a diagnosis of PTSD that confirmed with the DSM-5 or a mental health disorder. This was based on the examiner's review of the Veteran's claims file, medical records, in-person interview, and MMPI -2 test results. The examiner noted that the Veteran denied symptoms of PTSD at the interview. When the examiner asked the Veteran about symptoms and/or problems related to his combat time, he openly denied issues. The examiner expressly addressed the January 2014 assessment by Dr. Anderson and found that it was a not a reliable history of symptoms. Further, the examiner found that Dr. Anderson erroneously attributed difficulties from the Veteran's childhood to his three-month term in Vietnam. Additionally, the examiner found that the symptoms Dr. Anderson attributed to PTSD were clearly unrelated. For example, the Veteran had a learning disability and attention issues that accounted for the "reduced performance" not related to PTSD. Additionally, his family had never been affectionate and he had been raised to be detached and unexpressive verbally and emotionally, once against not due to PTSD. The examiner found that the Veteran denied any significant stressor or any significant impact in the past or presented related to his brief time in Vietnam. While it was noted that he felt guilty arriving late and leaving early, the examiner found that this was not a PTSD symptom. The Veteran had friends, a long career, and denied problems working with others. He remained highly effective, albeit overwhelmed by all he had to do. The examiner found that the Veteran did not have clinical levels of symptoms that were related or unrelated to any mental health history, including PTSD. The Veteran reported that he felt loved, but that his family was not one that displayed or said it. He reported that he went to the flea market with a friend and was close to an 80-year-old neighbor. His wife was chronically ill with end stage renal failure and he took her to dialysis three days a week. He was physically tired and worn out. The Veteran had had an open heart surgery in 2000 with occasional continued atrial fibrillation. He had also had testicular cancer. The Veteran was a slow reader and had been in slower classes. During service, the Veteran had to testify at a court martial and arrived in Vietnam six months after his class and then was only there for three months. He was sent home because his parents asked that he return to prune trees. He indicated that he felt guilty about this. During service, he went on patrols around the compound/perimeter and ran security on convoys and at the helipad refueling sites. The Veteran reported that his life had not been bad. He could not recall problems after returning from service except for reacting to loud bangs in the railroad yard. Vietnam was not something that came up daily. He also denied any mental health treatment or perceived need for help. He also had numerous medical issues, such as diabetes, skin cancer, and testicular cancer. The Veteran was not jovial, but also not "gloom and doom." He was aggravated about what he needed to do, but could not complete because he had so many other things to do. The Veteran felt tired and disappointed that he could not get everything done. The Veteran's family was never demonstrative about love and he himself was like that although he clearly took care of his wife and put her needs first. His detachment was not due to PTSD. The Veteran used a CPAP machine and had always worked the second and third shift, which he attributed as part of his sleep problem. The examiner found that the MMPI-2 test results showed that the Veteran was likely to over-endorse responses that stated "all of the time" or "most of the time," when in fact it was only "some of the time." The Veteran did engage in overthinking his answers and reported being a slow reader. The examiner found that the elevated clinical scales did not match the claimed symptoms of PTSD. The Veteran endorsed being shy and introverted, but denied anxiety or being depressed/demoralized. The Veteran did have cognitive issues, specifically his mind wandering, but he denied negative thoughts. He took some time to think about a question before he responded. Regarding the Veteran's stressor, the examiner noted that the Veteran had been awarded the Combat Infantryman Badge with no specific trauma noted. The Veteran wondered if life would have been different if he had not gone to Vietnam. At the interview, there was no specific event he dwelled on or thought about. He was able to easily push thoughts away if something did pop up. The Veteran's current stressor was his wife's chronic illness. In going through the PTSD diagnostic criteria from the DSM-5, the examiner noted the following: (1) the Veteran only had intrusive distressing memories of the traumatic event if he spoke about Vietnam to a veteran (maybe once a month) or saw something in the news; (2) he denied avoidance; (3) he had the same number of friends he did as a child as an adult; (4) situationally had irritable behavior and angry outbursts and while he had a short fuse, the Veteran reported that he was easy-going and not intimidating; (5) he had numerous irritants; (6) he had exaggerated startle response and did like to sit facing the door; and (7) his sleep disturbance was not related to PTSD. In the November 2014 notice of disagreement and June 2016 VA 9, the Veteran contended that he had established a stressor for PTSD and a diagnosis for PTSD. As such, he argued that he should be granted service connection for PTSD. In an October 2020 VA examination, the examiner found that the Veteran did not now have or ever had been diagnosed with a mental disorder. The examiner reviewed the claims file, to include the January 2014 assessment diagnosing the Veteran with PTSD and depression and the September 2014 VA examination, and interviewed the Veteran. After evaluating the Veteran and reviewing the record, to include treatment records showing consistent denial of mental health symptoms, the examiner found that the Veteran did not meet the criteria for any mental health disorder, to include PTSD. The Veteran denied depressed mood, extensive mood dysphoria, mania, anxiety, panic attacks, suicidal or homicidal ideation, psychosis and trauma symptoms. The Veteran reported poor sleep at times. He also reported milder adjustment issues related to his and his wife's health, but he did not meet the criteria for a mental health disorder. The examiner noted that the Veteran had general worry about his wife's health, was occasionally angry, and was occasionally guarded or watchful, but this did not appear to be a problem. The Veteran reported that he saw some combat in Vietnam and recalled taking fire and experiencing incoming mortar rounds. The Veteran had never had mental health treatment and never been on medication. While he had been diagnosed with PTSD and depression in January 2014, he denied any major concerns. He sometimes felt down when he could not get everything done. He denied consistently reexperiencing events from Vietnam and flashbacks. He had nightmares every few years and mild hypervigilance. In post-service VA treatment records, the Veteran consistently denied psychiatric symptoms, to include nightmares, avoidance behavior, being constantly on guard, watchful, or easily startled, feeling numb or detached from others, activities, or surroundings, little interest or pleasure in doing things or feeling down, depressed, or hopeless, anxiety, and sleeping difficulties. Based on the foregoing, the preponderance of the evidence weighs against finding that the Veteran has a current diagnosis of a psychiatric disability, to include PTSD. While Dr. Anderson diagnosed the Veteran with PTSD and depression in a January 2014 psychological assessment and Dr. Yocom notes a PTSD diagnosis in a January 2014 report, it does not appear that either applied the full diagnostic criteria for PTSD as outlined in the DSM-5. 38 C.F.R. § 4.125. Conversely, the September 2014 and October 2020 VA examiners expressly found that based on in-person clinical interviews, results of objective psychiatric tests, and review of the medical evidence that the Veteran did not meet the criteria for a diagnosis of PTSD or any other mental health disorder under DSM-5. There is no evidence that the September 2014 and October 2020 VA examiners were either not competent or credible. Further, their findings as to the Veteran's psychiatric diagnosis were based on the correct DSM-5 criteria, they specifically discussed the diagnostic criteria, and they considered both the Veteran's medical history and interview in rendering their findings. Additionally, their findings are consistent with post-service treatment records. As such, the Board finds that the September 2014 and October 2020 VA examination reports are entitled to significant probative weight as to the presence of an acquired psychiatric disorder, to include PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the preponderance of the evidence is against finding that the Veteran has a current diagnosis of an acquired psychiatric disorder, to include PTSD, in conformity with the DSM-5. As such, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not warranted on any basis is this case. Brammer, 3 Vet. App. at 225. The preponderance of the evidence weighs against a finding that the Veteran has a currently diagnosed psychiatric disability that is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for testicular cancer, to include as secondary to herbicide exposure, is remanded. 2. Entitlement to service connection for diabetes mellitus, type II, is remanded. In its November 2018 remand, the Board directed the examiner to consider whether the Veteran's testicular cancer was at least as likely as not related to his service, to include herbicide exposure. The December 2020 VA examiner opined that it was less likely than not due to service, but did not specifically address the Veteran's herbicide exposure except to note that it was not a VA recognized presumptive disease associated with exposure to Agent Orange or other herbicides. As such, an additional remand for another VA opinion is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). In a December 2020 VA examination, the examiner found that the Veteran did not have an official diagnosis of diabetes, but found that he had been diagnosed with impaired fasting glucose. In making this finding, the examiner noted that the Veteran has been diagnosed with impaired fasting glucose (December 30, 2013) and was pre-diabetic. However, this December 30, 2013 record shows that while the Veteran's "active problems" included impaired fasting glucose, he had also been assessed with diabetes mellitus. As such, further clarification as to whether the Veteran has a current diagnosis of diabetes mellitus is warranted. The matters are REMANDED for the following action: 1. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's testicular cancer. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination for his testicular cancer. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's testicular cancer was due to his military service, to include herbicide exposure. The examiner is advised that although testicular cancer is not presumptively linked to herbicide exposure, it still may in fact be causally linked to such exposure. A complete rationale for any opinion expressed must be provided. 2. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's diabetes. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination for his claimed diabetes. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner should clarify whether the Veteran has had diabetes mellitus, type II, at any time during the appeal period (January 30, 2014 to the present). In doing so, the examiner is advised that a December 2013 private treatment record and 2016 VA treatment records reflect a diagnosis of diabetes mellitus. A complete rationale for any opinion expressed must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.