Citation Nr: 21028757 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-31 365 DATE: May 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected traumatic brain injury with Meniere's disease (TBI), is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran's acquired psychiatric disorder is not related to service, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Entitlement to service connection for acquired psychiatric disorder, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012) 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2018, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the record shows that the additional development was completed, and the Board thus finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matter has now returned to the Board for appellate review. SERVICE CONNECTION The Veteran contends that his current acquired psychiatric disorder, diagnosed as bipolar disorder, was aggravated beyond its natural progression by his service-connected TBI. See 08/10/2009 VA 21-4138, Statement in Support of Claim. Specifically, he attributes his current acquired psychiatric disorder to an in-service motor vehicle accident that resulted in his current TBI. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include psychosis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as psychosis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (1); see also, 38 U.S.C. § 1154(b). Similarly, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. At 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V). 38 C.F.R. § 4.130 (2016). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. The Board notes that this claim was not certified to the Board until April 2017. Accordingly, this claim was pending before the agency of original jurisdiction on August 4, 2014, and DSM-5 applies to this claim. 79 Fed. Reg. 45094 (Aug. 4, 2014). Factual Background and Analysis The Veteran's service treatment records (STRs) are silent for complaints, treatment, or a diagnosis of a psychiatric disorder. Indeed, the July 1971 Report of Medical History obtained at induction reveals that he denied ever having trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. 02/25/2005 STR Medical. Similarly, the Veteran's October 1973 discharge examination shows a normal psychiatric evaluation. Id. at 17. The Veteran's remaining STRs are negative for complaints, treatment, or diagnoses of a psychiatric nature. After discharge, the earliest evidence of psychiatric complaints is found in a November 2008 VA Primary Care Admission Evaluation Note, where the Veteran was seen with complaints of depressed mood, anxiety, insomnia, and racing thoughts. See 04/19/2019 CAPRI at 756. He attributed these complaints to financial problems and the examiner reported that the Veteran's mood seemed more manic than depressed. Id. Thereafter, at a December 2008 VA Initial Psychiatric Assessment, the Veteran was diagnosed with bipolar disorder. Id. at 745. The Veteran was first afforded a VA examination in connection with his claim in March 2015. See 03/27/2015 CAPRI. The examiner diagnosed the Veteran with the following mental disorders: bipolar I disorder (most recent episode depressed, moderate); alcohol abuse disorder (moderate, in early remission); and cocaine abuse (moderate, in sustained remission). See id. The examiner also indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD. In November 2015, the Veteran was afforded another VA examination to evaluate his claim for memory loss, where the examiner rendered a mental disorder diagnosis of persistent depressive disorder. See 12/08/2015 C&P Exam. The examiner indicated that it was at least as likely as not that the Veteran's memory loss was incurred in or caused by service, and attributed the symptoms of memory loss to the Veteran's TBI. Id. at 21. However, the examiner did not provide a nexus opinion for the diagnosed persistent depressive disorder. See id. Thereafter, the Veteran was afforded a VA examination in August 2016. 08/26/2016 C&P Exam. The examiner diagnosed the Veteran with minor neurocognitive disorder due to TBI and bipolar disorder II. See id. The examiner also reported that it was possible to differentiate symptoms, and that memory problems, executive function problems, emotional lability, headaches, and balance problems were attributable to minor neurocognitive disorder due to TBI. See id. at 2. The symptoms attributable to bipolar disorder II were reported to be variable, extreme fluctuations in mood between mania or hypomania and depression lasting several days. See id. Pursuant to the July 2018 Board Remand, the Veteran was afforded another VA examination in August 2018 to evaluate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected TBI. 10/02/2018 C&P Exam. The examiner diagnosed the Veteran with bipolar disorder and TBI, and noted that there was no diagnosis of PTSD. The examiner reported that it was not possible to differentiate the symptoms attributable to each diagnosis due to significant overlap, but indicated that the majority of social and occupational impairment, or approximately 90 percent, was attributable to bipolar disorder. See id. at 3. Regarding nexus, the examiner opined that it was less likely than not that the Veteran's acquired psychiatric disorder was related to service, as there was no evidence of symptoms of or treatment for a psychiatric condition during service. See id. Likewise, regarding whether the Veteran's acquired psychiatric disorder was aggravated by service-connected TBI, the examiner opined that it was not possible to determine a baseline level of severity without resorting to speculation, as there was no evidence of psychiatric symptoms or triggers during service. See id. Further, the examiner opined that regardless of the baseline of severity, the Veteran's acquired psychiatric disorder was less likely than not aggravated beyond its natural progression by a service-connected TBI. See id. As rationale, the examiner reasoned that the Veteran had no post-service cognitive or mental health complaints until his bipolar disorder diagnosis in 2008, over three decades after service. See id. In addition, the examiner reported that there was no evidence to suggest that the Veteran's documented minor head injury has contributed or aggravated his mental health condition. In addition, the examiner noted that the evidence shows the Veteran's acquired psychiatric disorder has shown improvement in recent years with consistent treatment, but his medical history suggests non-compliance with treatment recommendations, as secondary to limited insight into his diagnosis and medication side effects, not service-connected TBI. See id. Considering the claim for service connection for an acquired psychiatric disability to include PTSD, the Board finds that the claim must be denied. Regarding the PTSD aspect of the Veteran's claim, service connection for PTSD requires a medical diagnosis of PTSD 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) (2020). Here, the Board will initially turn to the issue of whether the Veteran has a current diagnosis of PTSD and, if so, whether such disorder is related to his military service, to include combat exposure therein. As noted above, service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-5)). 38 C.F.R. § 3.304(f). In this case, the persuasive medical evidence demonstrates that the Veteran does not currently have a diagnosis of PTSD. Notably, the August 2018 VA examination specifically found that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-5 criteria. The August 2018 VA examiner conducted a review of the record and provided a medical explanation for why the Veteran's symptoms did not meet the DSM-5 PTSD criteria. The August 2018 VA examiner's opinions are plausible and consistent with the evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Consequently, the Board considers the August 2018 VA examination to be highly probative evidence weighing against a current diagnosis of PTSD. Additionally, while statements from the Veteran reflect his continued assertion that he has PTSD, the most probative medical evidence does not support his opinion. While the Veteran is competent to report symptoms, he is not necessarily competent to attribute such symptoms to a specific underlying psychiatric disorder. In this regard, the Board ultimately places more weight on the medical opinions and clinical findings of record on the matter of whether the Veteran has a current diagnosis of PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the claim as the Veteran does not have a current diagnosis of PTSD. Regarding an acquired psychiatric disorder other than PTSD, after having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an acquired psychiatric disorder had its onset in service or was caused or aggravated by a service-connected disability. Initially, as the Board notes that as there is a current diagnosis of bipolar disorder, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of psychosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, bipolar disorder is not classified as a psychosis, and therefore may not be granted on a presumptive basis. Regarding service connection on a direct basis, the Veteran's service treatment records are again negative for treatment or complaints related to an acquired psychiatric disability and there are no clinical findings or diagnoses of any psychiatric disability during service or for several years thereafter. Specifically, a review of the record shows that the Veteran first sought treatment for depressed mood in November 2008 and was first diagnosed with bipolar disorder one month later in in December 2008. See 04/19/2019 CAPRI at 745, 756, 758. As the Veteran separated from service in December 1973, approximately 35 years passed before the Veteran was diagnosed with an acquired psychiatric disorder or reported any related symptoms. Significantly, the only medical opinions addressing the etiology of the claimed acquired psychiatric disability weigh against the claim as the August 2018 VA examiner opined that the Veteran's acquired psychiatric was not related to the Veteran's time in service or a result of the traumatic stressor events. None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. In January 2016, the Veteran obtained a letter written by Dr. I.J., MD, which states that the Veteran has received treatment for bipolar disorder at the Goldsboro VA Outpatient Clinic since June 2013. See 08/11/2016 VA Memo (Letter). However, the January 2016 letter does not contain any opinion on whether a nexus exists between the Veteran's bipolar disorder and military service. Instead, Dr. I.J. opines that only the Veteran's TBI, to include cognitive impairment, is related to military service. See id. at 3. As such, Dr. I.J.'s January 2016 letter fails to establish a nexus between the Veteran's acquired psychiatric disorder and his military service, to include service-connected TBI. Thus, the Board finds the examiner's August 2018 opinions to be persuasive. Regarding service connection on a secondary basis, the Board notes that the Veteran is service-connected for a TBI. However, the Board finds that the weight of the evidence is against a finding that the Veteran's current acquired psychiatric disability is etiologically related to the Veteran's military service on a secondary basis. Notably, the only medical opinions addressing the etiology of the acquired psychiatric disability on a secondary basis weigh against the claim. The August 2018 VA examiner specifically opined that it was less likely than not that the Veteran's service-connected TBI caused or aggravated a diagnosed acquired psychiatric disability. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for an acquired psychiatric disability is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). The Board notes the Veteran's contentions regarding the etiology of his claimed acquired psychiatric disability. To the extent that the Veteran himself contends that a medical relationship exists between his claimed current disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). The Board finds that an acquired psychiatric disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed acquired psychiatric disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the February 2021 VA examiners provided detailed rationales in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran's assertions that there is a relationship between his claimed acquired psychiatric disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Tremont 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.