Citation Nr: 21030957 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-29 593 DATE: May 20, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran had an acquired psychiatric disability, to include PTSD, at any time during the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to June 1992. This case comes before the Board on appeal from a July 2014 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied the Veteran's claim for service connection for PTSD. In July 2019, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In September 2019 and December 2020, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD is governed by 38 C.F.R. § 3.304 (f), which requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), see 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by the medical evidence, between current symptoms and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Regarding the second PTSD element as set forth in 38 C.F.R. § 3.304 (f), the evidence necessary to establish the claimed stressor varies depending on the circumstances of the stressor and the nature of a veteran's service. A veteran's lay testimony alone may establish the occurrence of the claimed in-service event in four instances: (1) if the evidence establishes that the veteran was diagnosed with PTSD during service and the claimed stressor is related to that service; (2) if the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) if the claimed stressor is related to a fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran's symptoms are related to the claimed stressor; or (4) if the evidence establishes that the veteran was a prisoner-of-war under 38 C.F.R. § 3.1 (y) and the claimed stressor is related to that experience. 38 C.F.R. § 3.304 (f). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder, to include PTSD The Veteran maintains that he has a psychiatric disorder related to service. Specifically, the Veteran maintains that in 1989 or 1990, while serving in aircraft maintenance, he witnessed a plane having mechanical issues; ultimately, however, the plane landed safely, and no injuries occurred. He has also reported that during service he was informed of a plane crash while in Desert Storm. The Veteran indicated that he saw debris from the crash and stated that "half of the crew was lost." The Veteran has denied seeing the crash occur or seeing any injured or deceased individuals of the plane crash. The evidence also includes a June 2016 statement from Rev. McMahon. At that time, it was noted that the Veteran had sought and received counseling relating to his military service. Specifically, it was noted that prior to his deployment, an officer threatened the Veteran with sexual assault. Although the Veteran refused the advances, he was harassed by the individual several times. This was noted to result in years of nightmares and debilitating anxiety. See also Veteran's statement dated in June 2016 and July 2019 Board Hearing transcript at pg. 2. Upon review, the Board finds that the preponderance of evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an acquired psychiatric disability to include PTSD. Service treatment records include a June 1992 note where the Veteran was seen for "depressed mood + affect." The Axis I diagnosis noted at that time was "phase of life problem" and "occupational problem." No additional service treatment records include any diagnosis, complaints, or treatment for any psychiatric symptoms. Although a service separation examination report is not of record, VA treatment records dated in 1994 (approximately 2 years following service separation) do not contain any complaints, diagnoses, or treatment for a psychiatric disorder. The evidence also includes a July 2014 VA psychiatric examination. At that time, the Veteran denied any military sexual trauma. He also indicated that, during service, he took advantage of the mental health counselling as he was under "a lot of stress" shortly after the birth of his eldest son. Concerns were noted to have resolved withing less than 2 sessions. After performing a mental status examination, the VA examiner opined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM 5 or for any other mental disorder. In a June 2016 VA mental health note, the Veteran reported that he experienced nightmares approximately once a week, but was unable to recall the theme or content of the nightmares. The Veteran did, however, report an incident in service where he was sexually threatened by his sergeant. The Veteran was provided a mental status examination and a "provisional" diagnosis of anxiety disorder was indicated. A June 2016 VA mental health diagnostic study note indicated that the Veteran did not meet the DSM-IV criteria C for PTSD. In a January 2016 mental health note, the Veteran contacted the suicide prevention hotline. There was no indication that his symptoms were service related, but instead, were noted to be related to financial problems. The Veteran was afforded another VA psychiatric examination in January 2020. At that time, the examiner indicated that the plane crash incident did not actually occur to the Veteran as he was not on the plane. Further, the Veteran did not know any of the individuals on the plane and viewing debris from a plane was inadequate to sustain Criteria A for PTSD. Additionally, the Veteran's emotions felt at the time of accident, were noted to be "normal." As it pertained to the Veteran's alleged threat of sexual assault, the examiner noted that the Veteran did not report this incident at the time of the previous July 2014 VA examination. Moreover, the examiner opined that the alleged sexual assault threat was also inadequate to sustain criteria A for PTSD. The examiner noted that the in-service mental health treatment for depressed mood did not result in any diagnosis being rendered or any follow-up treatment. Post-service medical evidence also showed negative depression screenings in 2015, 2016, and 2017. Pursuant to the Board's most recent remand, a medical opinion was obtained in December 2020 to specifically address the provisional diagnosis of anxiety disorder rendered in June 2016. In this regard, the 2020 VA examiner indicated that he had carefully reviewed and reconsidered the June 2016 VA mental health note. The Veteran was referred at that time to the mental health clinic for unspecified reasons. Further, the Veteran had no knowledge of the content of his nightmares. The Veteran was also subthreshold for PTSD and no specific diagnosis or treatment was noted. The examiner also indicated that the "provisional" diagnosis was not further described etiologically. As such, the examiner opined that there was no psychiatric disorder that had their onset in service or were otherwise related to it. The Board finds that, when considered together, the VA medical opinions discussed are highly probative as to the nature of the Veteran's claimed psychiatric disorder. The examiner reviewed the claims file, discussed relevant medical evidence of record, and provided rationales in support of the opinions. See Bloom, 12 Vet. App. 187; Hernandez-Toyens, 11 Vet. App. 382; Claiborne, 19 Vet. App. 186; Miller, 11 Vet. App. 348. To the extent that the Veteran himself believes that he currently has an acquired psychiatric disorder, to include PTSD, he, as a lay person, has not demonstrated that he possesses the knowledge and medical expertise needed to competently assess whether he has such a disorder. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Here, providing a psychiatric diagnosis is a complex question that involves an assessment of symptoms and application of professional judgment outside of the realm of knowledge of a layperson using his/her senses. 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). Thus, the Veteran's opinion that he has PTSD, or another psychiatric disorder, is beyond the scope of his competency and is of no probative value. The Board acknowledges that the record includes a "provisional" diagnosis of anxiety disorder; however, a provisional diagnosis indicates that not enough information is available to make a firm diagnosis. See American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders 23 (5th ed. 2013). Therefore, the Board finds that the diagnosis has no probative value. The remaining evidence of record does not include a psychiatric disorder diagnosis in accordance with the DSM criteria. The Board also appreciates the June 2016 statement authored by Rev. McMahon, however, the Reverend is also not shown to possess the necessary medical training in psychiatry or psychology, so as to be competent to render a psychiatric diagnosis. The Court has consistently held that service connection cannot be awarded in the absence of current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (citing Brammer v. Derwinski, 3 Vet. App. 223 (1992), and Rabideau v. Derwinski, 2 Vet. App. 141 (1992)) aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Thus, regardless of whether an in-service stressor occurred, without evidence to show that the Veteran currently suffers from PTSD, a diagnosis of which conforms to the criteria as required by regulation, or another acquired psychiatric disorder, service connection must be denied. See Brammer, supra. Accordingly, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of an acquired psychiatric disorder to include PTSD, and, therefore, the Board concludes that a grant of service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.