Citation Nr: 21032330 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-40 266 DATE: May 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a diagnosis of PTSD or other acquired psychiatric disorder that began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1971 to January 1978 and from February 1979 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the case for further development. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD 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). The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for PTSD or another psychiatric disorder. Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in conformance with the DSM-IV criteria; (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to adequacy of the symptomatology and sufficiency of the stressor. See Cohen, 10 Vet. App. at 153. A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). If a stressor is related to the Veteran's fear of history military or terrorist activity, and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the stressor, in the absence of clear and convincing evidence to the contrary, and provided that the stressor is consistent with the places, types, and circumstances of his service, his lay testimony alone may establish the occurrence of the claimed stressor. 38 C.F.R. § 3.304 (f)(3). If the Veteran did not engage in combat with the enemy, or the Veteran did engage in combat, but the alleged in-service stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged in-service stressor. Instead, the record must contain credible supporting evidence which corroborates the Veteran's testimony or statements. Cohen, 10 Vet. App. at 147. The Veteran seeks to establish service connection for an acquired psychiatric disorder, claimed as PTSD. His reported stressors pertain to the death of two fellow soldiers in a tanker truck explosion in Germany, and fear of hostile military or terrorist activity during service in Desert Storm/Desert Shield. The RO and Joint Services Records Research Center (JSRRC) have been unable to verify the stressor pertaining to deaths in the reported tanker truck explosion. In addition, the evidence of record, including service personnel records, does not contain confirmation that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, as he alleges. The service treatment records do not contain a diagnosis of an acquired psychiatric disorder. On a periodic examination during service in February 1986 the Veteran reported that he was "very nervous most of the time." The Veteran underwent treatment for alcohol dependence during service in 1989. In December 1991, the Veteran reported that he had trouble sleeping. In May 1992 the Veteran reported that he thought he had a lot of stress. On his July 1992 service retirement examination, the Veteran reported a history of night sweats and insomnia. The separation examination noted normal psychiatric evaluation. On a VA examination in November 1992, the Veteran reported having nervous symptoms prior to his retirement from service; the Veteran indicated that he felt the symptoms were related to the stress of leaving the Army after 20 years. He stated that he did not feel nervous at the present time. The examiner diagnosed adjustment disorder, not otherwise specified, now resolved, by history. The Veteran submitted a report of private psychological evaluation dated in March 2014. The examiner diagnosed PTSD under the DSM-5 criteria based on the Veteran's reported stressors of combat in Desert Shield/Desert Storm and death of comrades during service in Germany. The Veteran reported that after he returned from Southwest Asia he experienced symptoms of intrusive thoughts, traumatic nightmares, avoidance of conversations about his military service, hypervigilance, hyperirritability, memory problems, and exaggerated startle response. A VA examination was conducted in October 2019. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD or any other mental disorder under DSM-5. The Veteran reported as stressors that two colleagues were killed in a tank accident although he did not personally witness this; being deployed during Desert Storm although he reported no traumatic incidents that continue to cause symptoms or impact functioning; and that during training others threw rattlesnakes under his bed and he still has flashbacks about this. The examiner stated that none of these stressors were adequate to support a diagnosis of PTSD. The examiner stated: For the claimant's claimed condition of acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) there is no diagnosis because the Veteran was evaluated for mental disorders including PTSD, depressive disorders, and anxiety disorders, but denied current clinical levels of symptoms such that he does not meet DSM-5 criteria for any disorder at the present time. The Veteran reported having some temper problems before the military which continued during and after the military. He reported abusing alcohol and other drugs during his military service and also reported mental health symptoms during that time in-service that appear to be related to his history of substance use and to stressors at that time. The Veteran reported no history of social or occupational impairment after the military related to mental disorder symptoms as he reported having meaningful interpersonal relationships and no history of disciplinary problems at any job after the military related to mental disorder symptoms. At the present time he denied having clinical levels of mental disorder symptoms, noting that he is "probably just as sane as most people." He reported some irritability, but reported that temper and fighting were present before the military so this appears to be related to personality traits and not related to a mental disorder that originated in the military. He reported some sleep disturbance but also reported having sleep apnea with inconsistent CPAP use which can account for sleep disturbance. He reported worrying but did not report clinical levels of anxiety in the context of the worrying, or a clear relationship between worrying and other symptoms. He reported being more hypervigilant starting after the military related to violence in civilian communities and after 9/11/2001, but not related to military service. The Veteran participated in an evaluation with a private masters-level therapist, Louise Glogau, in 2014 and please note that VA policies indicate that a masters-level therapist is not qualified to conduct an initial PTSD evaluation. Please note that symptoms and impairment discussed in the report of this masters-level therapist are inconsistent with the information reported by the Veteran at the current evaluation as the Veteran currently denied symptoms and impairment that Ms. Glogau documented in her report. Please note that Ms. Glogau's report also does not specify a trauma that meets PTSD criterion A and at the current evaluation the Veteran denied PTSD symptoms related to Desert Storm experiences. As a result, the Veteran is given no current mental disorder diagnosis. Based on current available evidence, in-service reports of symptoms in 1986, 1989, 1991, and 1992 are attributed to substance use and stressors at that time and are not attributed to long-standing DSM-5 mental disorders. The only psychiatric disability diagnosed during the appeals period is PTSD. However, the March 2014 diagnosis of that disability is based upon unconfirmed stressors. In particular, the Veteran's report of service in Southwest Asia is not confirmed by any official service record. Thus, the diagnosis of PTSD is not probative as it is based on an incorrect history. The Board notes that while the Veteran alleges that he has an acquired psychiatric disorder due to his military service, as a layperson without any medical training and expertise, he is not qualified to render a medical opinion about the etiology of a psychiatric disorder. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Unlike disabilities that may be observable as to their incurrence and their cause, such as a dislocated shoulder, the cause of a psychiatric disorder is not readily apparent to lay observation, and psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) ("[i]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board finds that the Veteran is not competent to diagnose or to opine on the the onset or cause of, any acquired psychiatric disorder. The Board affords the October 2019 VA examiner's opinion great probative weight, as the opinion contains a rationale for its conclusion that the Veteran does not meet the criteria for a diagnosis of PTSD or any other psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly-reasoned opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examiner also discussed the inservice complaints and the lack of any relationship to his current mental health. After careful consideration of the lay and medical evidence of record, the Board finds that the evidence is against a grant of service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.303. In reaching such a conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.