Citation Nr: 21031855 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-60 803 DATE: May 24, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an increased rating for left wrist fracture is remanded. Entitlement to an increased rating for left wrist scar, status post arthroscopic surgery is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a currently diagnosed PTSD condition that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1994 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) from a November 2015 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for entitlement to service connection for PTSD was remanded by the Board in October 2019 in order to obtain a VA examination in order to clarify as to whether the Veteran has PTSD related to her military service, specifically as due to alleged military sexual trauma (MST) during her service. The Veteran's claims for increased ratings for her fractured left wrist and associated scarring were also remanded in December 2019 as a Supplemental Statement of the Case (SSOC) had not yet been issued since the most recent October 2019 examination report. Now of record is a December 2019 VA examination report and medical opinion addressing the Veteran's PTSD claim, as well as July 2020 Supplemental Statement of the Case (SSOC) readjudicating the Veteran's increased rating claims. Upon review of the July 2020 SSOC, as discussed at greater length below, the Board finds that its December 2019 remand directives were not substantially complied with, as the RO did not consider/address the October 2019 examination report in readjudicating the Veteran's increased rating claims of the left wrist. See Stegall v. West, 11 Vet. App. 268 (1998). In December 2019, the Board issued a decision denying entitlement to service connection for tinnitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In September 2020, the Court vacated the December 2019 Board decision and remanded the issue of tinnitus for further consideration consistent with the parties' August 2020 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA Secretary. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD generally 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. See Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f). If PTSD is based on in-service personal assault, evidence from sources other than the claimant's records may corroborate the account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) The Veteran's claim was remanded in October 2019 to obtain a new VA examination assessing her PTSD condition as due to her contentions that she suffered MST during active duty service. See January 2016 Notice of Disagreement (NOD); January 2017 VA Form 9. Specifically, the Veteran alleged that she suffered MST stemming from a sexual assault occurring after a night out. See August 2016 Statement in Support of Claim. Upon remand, the December 2019 VA examiner opined that the Veteran does not meet the diagnostic criteria for PTSD under the DSM-5 criteria. Relative to the Veteran's VA treatment records which do reveal a diagnosis, the December 2019 VA examiner indicated that said diagnosis does not meet the full criteria for VA purposes. Specifically, the examiner explained that the September 2016 treating psychologist noted that the Veteran's symptoms had their onset and continuous duration since her active duty military service; however, this was not supported by the evidence of record, as the Veteran specifically denied depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping during service. The examiner ultimately found that the Veteran's treatment records were negative for mental health services until 14 years after active duty. Id. Additionally, the 2009 VA examination was also negative for PTSD. See January 2009 VA treatment record. The December 2019 VA examiner concluded that the Veteran's symptomatology is attributable to her alcohol usage and depression. Here, the Board notes that the Veteran is already service-connected for depression with alcohol abuse, which has been medically associated with her service-connected bilateral knee conditions. See July 2013 RD. The Board acknowledges the Veteran's belief that she suffers from PTSD due to MST. See January 2016 NOD; January 2017 VA Form 9. The Board finds that although the Veteran is competent to describe observable symptoms, she is not competent to diagnose PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). The record does not reveal that the Veteran has the medical education and training required to make a competent clinical diagnose of PTSD or attribute symptoms to such diagnose. As such, the Board finds the Veteran's statements probative with regard to her current symptoms but finds little probative value with regard to establishing a diagnosis of PTSD for the purposes of VA compensation. In contrast to the Veteran's lay statements, the Board finds that the December 2019 VA examiner's opinion to be competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The VA examiner's opinion was rendered after reviewing the Veteran's VA medical records, soliciting a medical history from the Veteran, and conducting a physical examination and clinical testing of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The VA examiner provided facts and rationale on which he based his opinion, pointing to specific medical treatment records in support and in explaining the DSM criteria that had not been met for a diagnosis of PTSD. Finally, the probative value of the December 2019 VA examiner's opinion is further bolstered by its consistency with the medical evidence in the Veteran's medical history, which shows that PTSD screenings have been negative, and that despite being provided a clinical diagnosis of PTSD, that diagnosis does not meet the full criteria for VA compensation purposes. In sum, the weight of the most competent and credible evidence of record shows that the Veteran does not have a current diagnosis of PTSD sufficient to establish compensation benefits. Without competent evidence of a diagnosed disorder, service connection for the disorder cannot be awarded, and therefore the claim is denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability, there can be no valid claim."); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). REASONS FOR REMAND 1. Entitlement to an increased rating for left wrist fracture 2. Entitlement to an increased rating for left wrist scar, status post arthroscopic surgery As previously indicated, upon remand, while the RO readjudicated the increased rating claims on appeal by issuing the July 2020 SSOC, there is no indication therein, to include in the listing of the evidence, as well as in the reasons and bases, that the October 2019 VA medical examination was considered in redeciding the claims on appeal. Accordingly, pursuant to Stegall, and in order to afford the Veteran every consideration, the Board finds that, unfortunately, the Veteran's increased rating claims must be remanded to the AOJ for consideration of the aforesaid additional evidence, and if any benefit sought is not granted, for issuance of a Supplemental Statement of the Case. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. 3. Entitlement to service connection for tinnitus is remanded. Per the parties' August 2020 CAVC JMPR, the June 2017 VA examination was inadequate for the Board's reliance to deny service connection for tinnitus and therefore the Board erred in relying upon it. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Specifically, the parties agreed that the June 2017 VA examiner applied the wrong standard of review, provided inconsistent statements, and did not address a pertinent lay statement of the Veteran's, namely that during service her berthing aboard the USS Abraham Lincoln was located near where the catapults were which she attributes to her issues with hearing. See April 2009 Statement in Support of Claim. As such, the Board finds that, unfortunately, another remand is required. See August 2020 CAVC JMPR. The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any outstanding VA treatment records since June 2020. 2. Schedule the Veteran for a VA examination addressing the nature and etiology of her claimed for tinnitus condition. The examiner is asked to render an opinion as to whether the Veteran's tinnitus is at least as likely as not related to her service. In so doing, the examiner must elicit a full medical history from the Veteran regarding her claimed tinnitus condition and note it in the examination report. Additionally, the VA examiner must specifically address the Veteran's lay statement of record relaying that during service her berthing aboard the USS Abraham Lincoln was located near where the catapults were which she attributes to her issues with hearing. VBMS, document labeled "VA 21-4138 Statement in Support of Claim," receipt date April 24, 2009. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Readjudicate the Veteran's increased ratings claims of the left wrist with consideration of all evidence associated with the claims file, especially the October 2019 VA medical examination. If any benefit sought is not granted, then furnish the Veteran and her representative a Supplemental Statement of the Case and afford them an opportunity to respond before the record is returned to the Board for further review. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.