Citation Nr: 21039799 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-60 515 DATE: July 1, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. In a final decision issued in September 2016, the Board denied service connection for an acquired psychiatric disorder other than PTSD, to include schizoaffective disorder, depression, and bipolar disorder. 2. At no time during the pendency of the claim does the Veteran have a current disability of PTSD, and the record does not contain a recent diagnosis of a disability prior to the Veteran's filing of a claim. CONCLUSIONS OF LAW 1. The September 2016 Board decision that denied service connection for an acquired psychiatric disorder other than PTSD, to include schizoaffective disorder, depression, and bipolar disorder, is final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100 (2017). 2. The criteria for service connection for PTSD have not been met. 38 C.F.R. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a Board hearing by live videoconference in the December 2016 VA Form 9 Appeal. In December 2019, the Veteran was scheduled for a hearing, but in a January 2020 statement she requested that the hearing be cancelled and the Board accept written argument from her representative in lieu of his testimony. Therefore, the Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704 (e). In September 2016, the Board remanded the Veteran's claim of entitlement to service connection for PTSD for additional development, and it now returns for further appellate review. Entitlement to PTSD. As an initial matter, the Board notes that in January 2020 the Veteran's representative requested that the Board recharacterize the Veteran's claim of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder. The representative further argued that such recharacterized claim should be granted for the Veteran's currently diagnosed schizoaffective disorder. However, the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD, to include schizoaffective disorder, depression, and bipolar disorder, was previously adjudicated and denied by the Board in September 2016. In this regard, as the Veteran did not seek reconsideration of the Board's September 2016 decision, did not appeal such decision to the United States Court of Appeals for Veterans Claims, and has not alleged clear and unmistakable error in it, it is final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. Accordingly, the instant claim will remain characterized as entitlement to service connection for PTSD, rather than an acquired psychiatric disorder, to include schizoaffective disorder . Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), which requires a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), 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). An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). However, VA requires a diagnosis that conforms to the DSM-5 to compensate for a psychiatric disability, therefore constraining the application of Saunders in the context of claims for service connection for psychiatric disabilities. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the instant case, the Veteran claims that she is entitled to service connection for PTSD as a result of being harassed by a sergeant during her time in service. Specifically, the Veteran has reported that the sergeant both picked on her and made unwanted advances. However, the Board notes that service connection for PTSD is not warranted as the probative evidence shows that at no time during the pendency of the claim does the Veteran have a current disability of PTSD, and the record does not contain a recent diagnosis of a disability prior to the Veteran's filing of a claim. In this regard, neither the Veteran nor her representative claim that the Veteran has a current diagnosis of PTSD; she instead claims that service connection should be awarded based on her currently diagnosed schizoaffective disorder. As was noted, supra, the claim cannot be recharacterized, and the Board cannot grant the instant claim without a current diagnosis of PTSD. In this regard, the Veteran was afforded a VA examination in December 2019 and has also submitted a private medical nexus opinion from January 2017. Both examiners noted that the Veteran has a current diagnosis of schizoaffective disorder. The private examiner further clarified that the Veteran's schizoaffective disorder was characterized as the bipolar type. The VA examiner also specifically stated that the Veteran had no other mental health diagnoses. The Board accords great probative weight to the January 2017 and December 2019 examiners' opinions that the Veteran does not meet the diagnostic criteria for PTSD during the appeal period, as they are both psychologists with the requisite training to diagnose PTSD, considered all relevant evidence of record, and articulated how the criterion was/was not met. Furthermore, both examiners explained why the Veteran's mental health symptomatology clearly fell under the diagnosis of schizoaffective disorder and, in doing so, offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). Of note, there is no medical opinion or other evidence contradicting these findings. The Board has also considered the Veteran's assertions that she should be awarded service connection for PTSD related to her military service, despite never being diagnosed with such disorder; however, as a lay person, she does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of PTSD involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship. Specifically, the diagnosis and etiology of such a disorder requires the applicability of DSM criteria, as well as knowledge of the impact traumatic experiences have on the human psyche. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while 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). Accordingly, the Veteran's opinion as to the characterization of her psychiatric symptomatology is not competent evidence and, consequently, is afforded no probative weight. Therefore, the Board finds that at no time during the pendency of the claim does she have a current disability of PTSD, and the record does not contain a recent diagnosis of a disability prior to her filing of a claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, service connection for PTSD, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.