Citation Nr: 21029236 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-21 062 DATE: May 13, 2021 ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD in accordance with the DSM-5. 2. The evidence of record does not establish that an acquired psychiatric disorder is due to or the result of his military service. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 1966 to April 1968. The Veteran received the Vietnam Campaign Medal and the Vietnam Service Medal, among other commendations. In September 2018, the Board previously remanded these matters for additional development and consideration. Service Connection The Veteran is seeking entitlement to service connection for psychiatric disorders, diagnosed as posttraumatic stress disorder (PTSD) and unspecified depressive disorder- anxious distress. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303 (a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure but must also determine whether the disability was otherwise the result of active service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). 1. Acquired psychiatric disorder The Veteran asserts he suffers from an acquired psychiatric disorder, to include PTSD, that is due his military service. Specifically, the Veteran reports he assaulted a man during service who incorrectly identified the Veteran's sexual orientation. The Veteran stated he perpetrated a second assault occurred when another person tried to take the Veteran's seat. See August 2015 VA Examination. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2020); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2020); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board has carefully reviewed the extensive evidence but finds that service connection for a psychiatric disorder is not warranted. The Board points out that a key element in establishing service connection is to show that a veteran currently has a diagnosis of the disability for which service connection is sought. See 38 C.F.R. § 3.304. Turning first to PTSD, the evidence of record does not show that he has met the requirements of a diagnosis of PTSD. Specifically, while a May 2015 and October 2015 private treatment record both note a diagnosis of PTSD. However, the August 2015 and November 2019 VA examiners both concluded the criteria for PTSD have not been met. The December 2019 VA examiner specifically noted that the October 2015 statement from Dr. C.M.Q. does not include a mental status examination required for a diagnosis. Moreover, the May 2015 private treatment record indicates that the PTSD diagnosis met the criteria under the DSM VI, which does not exist. The only evidence in support of the claim for PTSD are the Veteran's own assertions that he suffers from PTSD as a result of his military service. Consequently, the Board affords more weight to the August 2015 and December 2019 VA examinations because the examiners both conducted thorough mental examinations of the Veteran and reviewed the available VA treatment records. Therefore, the Board finds the evidence does not show that PTSD has been diagnosed in accordance with 38 C.F.R. § 4.125, despite the Veteran's contentions to the contrary during the appeal period. Since regulations require medical evidence diagnosing the claimed condition, the Veteran's self-assessment is not competent 38 C.F.R. § 3.304. In this respect, a clinical professional has the greater skill. The Veteran's self-report that he has PTSD related to service is not competent to establish a lay nexus to service. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (2006). As to whether the Veteran has any other psychiatric diagnoses, the record is in conflict on this point. Specifically, while the August 2015 and December 2019 VA examiners both determined there are no currently diagnosed psychiatric disorders, a VA problem list includes a notation of dysthymia, and the August 2015 statement from Dr. C.M.Q. includes diagnoses of major depressive disorder and generalized anxiety disorder. Again, however, the December 2019 VA examiner noted that Dr. C.M.Q.'s report does not include a mental status examination required for a diagnosis. Similarly, the diagnosis of dysthymia was not rendered following a mental status examination. In fact, similarly to PTSD, the only evidence in support of the claim for a psychiatric disorder other than PTSD are the Veteran's own assertions. Consequently, the Board affords more weight to the August 2015 and December 2019 VA examinations because the examiners both conducted thorough mental examinations of the Veteran and reviewed the available VA treatment records. As such, the Board concludes that there is no reliable and/or probative evidence showing that the Veteran has PTSD, or any other diagnosed psychiatric disorder. In the absence of a diagnosis of PTSD, there can be no valid claim in this respect. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Even assuming, arguendo, that the Veteran does have a diagnosis of a psychiatric disorder other than PTSD, the Board finds that the evidence does not support a conclusion that a diagnosed disorder is due to service. The Veteran's service treatment and service personnel records are silent as to any complaints or treatment for a psychiatric disorder during service. Following his separation from service, neither the VA nor the private treatment records include any probative opinions attributing a psychiatric disorder to the Veteran's military service. Based on the findings of the available evidence of record, there is no medical evidence of a nexus (i.e., link) between the Veteran's claimed psychiatric disorder and his military service, such that service connection may be established. In fact, the only evidence in support of his claim is the Veteran's belief that he has suffered from a psychiatric disorder due to his military service. His lay contention regarding the etiology of any diagnosed psychiatric disorder is outweighed by the medical evidence of record and, specifically, the August 2015 and December 2019 VA examiners conclusions that he does not have any psychiatric disorders that are due to his military service. Further, the VA examiners reviewed the medical records, performed clinical examinations, and provided cogent rationales in support of their assessment based on expertise acquired through education, training, and experience. Cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND 1. Sleep apnea The Veteran is seeking entitlement to service connection for sleep apnea that he believes is due to his military service, to include as due to exposure to Agent Orange or as secondary to a service-connected disability. The record reflects a current diagnosis of sleep apnea. See May 2008 Private Treatment Record. However, to date, there are no adequate opinions as to the etiology of this disorder. Specifically, a December 2012 statement from Dr. N.V. and an October 2015 statement from Dr. C.M.Q. both attributed the Veteran's diagnosed sleep apnea to his military service. However, as neither opinion provided an adequate rationale these opinions are of limited probative value. Conversely, the findings of a November 2019 VA examiner determined that it is less likely than not that the diagnosed sleep apnea is due to the Veteran's service, to include his as due to exposure to Agent Orange as it is not a presumptive condition. The examiner also stated that the sleep apnea is less likely aggravated beyond its natural progression by another medical condition as there is no evidence of any service-connected condition that could aggravate the sleep apnea upon review of medical literature. An April 2020 VA addendum opinion added there was no evidence of a pathophysiological relationship between sleep apnea and diabetes mellitus type 2 or any of the diabetes mellitus type 2 service-connected complications. Again, however, the VA examiners both provided conclusory opinions without supporting rationales. Moreover, while the November 2019 VA examiner is correct that sleep apnea is not a presumptive condition, an opinion as to direct service connection, to include the Veteran's conceded exposure to Agent Orange, must be obtained. Finally, in June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, which affects the Veteran's claim. In Ward, the Court held that secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence." 31 Vet. App. 233 (2019). Therefore, the Board finds a new opinion is required to determine whether the diagnosed sleep apnea may be etiologically attributable to the Veteran's military service or to a service-connected disability. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a qualified VA physician. The examiner should provide an opinion on the following: (a.) whether the Veteran's current sleep apnea is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include his conceded exposure to Agent Orange or other herbicides. (b.) whether it is at least as likely as not that the Veteran's sleep apnea was caused by his any service-connected disability (prostate cancer, diabetes mellitus with erectile dysfunction, and peripheral neuropathy of the bilateral upper and lower extremities), yes or no? (c.) Is it at least as likely as not that the Veteran's sleep apnea underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to any of the above noted service-connected disabilities, yes or no? (d.) The examiner must also comment on the December 2012 and October 2015 private opinions from Dr. N.V. and Dr. CM.Q., respectively. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.