Citation Nr: 21027507 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-58 529 DATE: May 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD); and as secondary to a service-connected disease or injury is denied. FINDINGS OF FACT 1. The Veteran did not serve in combat. 2. The Veteran does not have a current diagnosis of an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. An acquired psychiatric disorder, to include PTSD, is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision. In December 2018, the Board denied the claim, which resulted in the Court of Appeals for Veterans Claims (Court) later vacating that decision. Subsequently, the Board remanded this claim multiple times. It now comes before the Board. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and as secondary to a service-connected disease or injury Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection is warranted on a secondary basis for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires 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) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-5). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding a Veteran's claim, VA is responsible for determining 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, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran maintains that he has a psychiatric disorder. In 2016, the Veteran specifically cited to PTSD. The Veteran is currently service-connected for multiple disorders. The Veteran's service treatment records contain no complaints for any psychiatric disorder and in a December 1968 separation examination, the psychiatric evaluation was normal. The Veteran denied a history of depression, excessive worry, and nervous trouble of any sort in an accompanying Report of Medical History. The Veteran's medical history indicates that in November 2015, an intake assessment noted that the veteran had intrusive thoughts that caused him to have "low energy and motivation to do things, and that the veterans symptoms caused impairment with work and family relationships." Afterwards, an April 2016 VA PTSD examiner found that the Veteran did not have any psychiatric disorders; however, this medical opinion was concluded to be flawed. A medical note from December 2016 recorded that the Veteran reported some symptoms of PTSD but denied other symptoms. The medical note stated that the Veteran "[d]enied any further difficulties with interpersonal, occupational, legal, housing, and/or financial problems. Denied any other acute mental health concerns." The examiner stated that the Veteran met the criteria for an unspecified anxiety disorder. A January 2017 medical psychology consultation note specifically discussed the Veteran's observations and behavior, but ultimately concluded that the Veteran does not have a psychiatric disorder "that conforms with the DSM-5 criteria." A June 2018 medical note includes an assessment of the Veteran's mental health. The examiner stated that "unable to confirm whether or not Veteran meets full criteria for PTSD. Veteran does evidence some symptoms that are suggestive of a trauma or stressor-related disorder..." The Veteran was afforded a June 2020 VA examination. The June 2020 examiner concluded that the Veteran did not have PTSD or a mental disorder that conformed with DSM-5 criteria. The examiner also explained that "The previously diagnosed Unspecified anxiety disorder and PTSD are no longer relevant because the vet does not endorse enough symptoms of these diagnoses now to warrant a diagnosis." Pursuant to the Board's September 2020 remand, the VA examiner further clarified in a December 2020 addendum opinion that the Veteran was not diagnosed with a psychiatric disorder. The examiner stated that the Veteran "has not had PTSD per the DSM-5 at any point from around October 2015 (when he filed his claim) to present." The examiner also stated that "the November 2015 finding that the Veteran's symptoms caused impairment with work and family relationships is an example of Criterion C. However, the Veteran did not endorse additional symptoms of PTSD at that time to warrant the diagnosis of PTSD." The VA examiner stated that the Veteran did have a "diagnosis other than post-traumatic stress disorder per the DSM-5 at any point from around October 2015 to present. In December 2016, he was diagnosed with unspecified anxiety disorder." However, the VA examiner reviewed the medical information and noted that the medical note from January 2017 the Veteran was noted as not having a mental disorder. The VA examiner stated that "Thus, it is my opinion that the December 2016 diagnosis of unspecified anxiety disorder either resolved or was made in error or was a difference of opinion by the time of the January 2017 psychology consult note. He has not been diagnosed with PTSD or any other mental disorder since that time." In a January 2021 addendum medical opinion, the VA examiner affirmed his previous conclusions. The examiner made one additional observation that "Although the veteran's C-file includes a record from December 2016 with a diagnosis of unspecified anxiety disorder and a rule out for PTSD, this was a provisional diagnosis for which the veteran was referred for further evaluation. In that evaluation from January 2017 the Veteran was found not to have a mental disorder. As such, the diagnosis of 2016 should be considered as the basis on which the referral was made, and should be dismissed given the follow up evaluations, both C&P and VA assessment, which indicate that no mental disorder is present." In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the June 2020, December 2020, and January 2021 VA medical opinions that the Veteran does not have an acquired psychiatric disorder as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale, as well as thoroughly resolving all of the Board's requests from the September 2020 remand. The Board has considered the lay statements of the Veteran regarding an acquired psychiatric disorder. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of an acquired psychiatric disorder during active service. Here, the Veteran has appealed the denial of service connection for a psychiatric disorder. We find that a psychiatric disorder was not manifest during service or in proximity to separation. Rather, at separation, the psychiatric evaluation was normal and he denied all relevant history. In regard to the presence of PTSD, we note that the appellant was in a combat zone; however, he was not in combat. Far more important is the fact that PTSD has never been established as a diagnosis under any DSM criteria. The record does establish that he has presented some psychological manifestations long after service. However, such manifestations have not been related to service by competent authority and the existence of any diagnosis has been called into question. Even if we accept that he had some valid diagnosis during the appeal period, the fact remains that such label has not been attributed by a competent source to service. Regardless, the more probative evidence establishes that he never had a supportable diagnosis of any classifiable psychiatric disease. In regard to the assertion of secondary service connection, the regulation must establish the presence of disability and such disability must be linked (causation or aggravation) to a service-connected disease or injury. Because we conclude that the appellant does not have a psychiatric disability, the theory of secondary service connection fails. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The claim must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.