Citation Nr: 21027001 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-31 555 DATE: May 4, 2021 ORDER Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), anxiety, and depression, is denied. FINDING OF FACT The Veteran does not have a current diagnosis of a psychiatric disorder, including PTSD, anxiety, or depression. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, including PTSD, anxiety, and depression, have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2001 to April 2002, and from January 2003 to July 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from the 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2018; a transcript of the hearing is of record. In August 2020, the issue was before the Board and remanded in order to obtain identified private treatment records from April 2010 to August 2010; and any outstanding VA treatment records dated since October 2014. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. A review of the record reflects substantial compliance with the Board's remand directives, specifically the RO has requested that the Veteran complete and return authorization to disclose information to VA (VA Form 21-4142) and general release for medical provide information to VA (VA Form 21-4142a) in order to obtain specified private treatment records from 2010 (with no response from the Veteran to date); and VA treatment records dated since October 2014 were associated with the claims file. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Subsequent Development Letter, August 2020. The matter has been returned to the Board for further appellate proceedings. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety, and depression Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran 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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for PTSD, there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran, through his representative, contends that he has had a long battle with mental instability since his time in service, as evidenced by his lay statements describing repeated symptoms of depression-like episodes, which warrants consideration of service connection for depression and anxiety. See Appellate Brief, March 2021. The Board notes that the Veteran does not have a current diagnosis of a psychiatric disorder, including PTSD, anxiety, or depression. Historically, in February 2013 a private social worker reported that he saw the Veteran for 12 episodes of psychotherapy from April 2010 to August 2010 and diagnosed him as having PTSD. He stated that he had not seen the Veteran since the termination of his treatment August 2010. The Board notes that this diagnosis of PTSD occurred nearly four years prior to the appeal period and thus is not probative in terms of showing a current psychiatric disability during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Also of record are private treatment records from a readjustment counselor, M.C., dated from March 2013 to December 2013. In March 2013, the Veteran reported that he had been assessed as having PTSD and presented with symptoms of irritability, being isolative, poor sleep, nightmares, lack of trust in others, feeling detached from others, hypervigilance, and high anxiety. In the assessment, the counselor noted that the Veteran presented with symptoms of PTSD but did not think he had it. The Veteran participated in therapy to work on "PTSD issues." On the Veteran Information Form, it was reported that the Veteran was not assessed as having PTSD by the counselor. The counseling records contain no diagnosis of a psychiatric disorder. In July 2015, the Veteran was afforded a VA PTSD examination. He reported that he felt depressed because his son wants to live with him, and the son's mom will not let him. He also reported that he had anxiety, described as uncomfortable. After a detailed review of the evidence of record, examination, and review of Veteran lay statements, the examiner concluded that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner explained why a diagnosis of PTSD was not warranted, addressing the Criteria A through E. In response to the question as to whether the Veteran has another mental disorder diagnosis, the examiner diagnosed the Veteran with alcohol use disorder in early remission. With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). The Board notes that the DSM-IV was formerly applicable to the Veteran's claim. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). While the July 2015 VA examiner referenced the DSM-V in finding that the Veteran's symptoms did not meet the criteria for a diagnosis, the requirement that the PTSD diagnosis must conform to the DSM criteria has not altered. As the record does not show a DSM diagnosis of PTSD, the criteria for service connection are not satisfied. See 38 C.F.R. § 3.304(f). Similarly, for VA compensation purposes, to establish service connection for a psychiatric disability other than PTSD, there must be a diagnosis of a psychiatric disorder in accordance with the DSM to satisfy the current disability requirement. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020) (citing 38 C.F.R. § 4.125, 4.130). In this case, there has been no diagnosis of a psychiatric disorder based on the fourth or fifth editions of the DSM during the period under review. While the Veteran may have some psychiatric symptoms, such as irritability, feeling depressed, being isolative, poor sleep, nightmares, lack of trust in others, feeling detached from others, hypervigilance, and anxiety, a psychiatric disorder has not been diagnosed, including on the basis of such symptoms. In the absence of a diagnosis of a psychiatric disorder, the criteria for service connection are not satisfied. See id.; Holton, 557 F.3d at 1366. Further, while the Veteran generally asserts that he has a psychiatric disorder, the Board finds that such assertions are not competent, as the diagnoses of such are complex medical questions. There is no evidence that he has the requisite medical expertise or training to diagnose himself with any acquired psychiatric disorder based on the DSM criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). His assertions thus lack probative value, as they are not competent. In this regard, the Board places greater probative weight on July 2015 opinion of the VA examiner, given his medical training, who diagnosed the Veteran with alcohol use disorder in early remission only. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Concerning the diagnosis of alcohol use disorder, service connection may not be granted for drug or alcohol abuse on the basis of service incurrence or aggravation as a matter of law. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301. (Continued on the next page) Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety, and depression, is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.