Citation Nr: 21041215 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-45 567 DATE: July 8, 2021 ORDER Entitlement to service connection for include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 2. The Veteran's PTSD has not been diagnosed in accordance with 38 C.F.R. § 4.125. 3. The Veteran without good cause did not report for VA examinations that were necessary to evaluate his claim. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.655, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1971 to May 1975. This appeal is from a May 2013 rating decision. In November 2018, the Board remanded this issue for additional development. Specifically, for the provision of a VA examination. The Board notes that the Veteran cancelled the scheduled VA examinations twice. In the remand, the Board characterized the issue in appellate status as entitlement to service connection for PTSD. The Board finds it proper to limit the issue to PTSD based on the contentions on appeal. See Form 9. Although the same remand asked the examiner to address whether there were other diagnosis, based on the Veteran not attending this examination, the Board finds that the issue need not be recharacterized as the evidence remains the same as when remanded. Based on the procedural history of this appeal, the DSM-5 applies. The case has since been returned to the Board for review on the merits. 1. Entitlement to service connection PTSD is denied. Establishing service connection for PTSD specifically 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 the in-service stressor; and, credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Here, the Veteran's PTSD diagnosis was not made in accordance with 38 C.F.R. § 4.125. The Veteran's claim of PTSD was received in June 2011. In August 2014, his VA treatment provider diagnosed PTSD, which he noted was based on the DSM-5 criteria, and he related it to service; however, he did not set forth how the diagnostic criteria was met for that diagnosis. As such, the Veteran was scheduled for a VA examination, which was cancelled at Veteran's request. A second VA examination was scheduled, and the Veteran again cancelled the appointment. Since the VA examinations were cancelled at the Veteran's request, twice without explanation, a decision on the record must be made, as discussed below. 38 C.F.R. § 3.655. Duty to Assist Regarding the duty to assist, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to "search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). However, the Board will discuss one salient aspect of the duty to assist in the present case. See generally 38 U.S.C. § 5103A. Pursuant to the instructions of the November 2018 Board remand, the AOJ scheduled the Veteran for a VA examination to determine the nature and etiology of any mental health disability to include PTSD. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). However, the Veteran cancelled the VA examination scheduled on his behalf. Another examination was scheduled, which was also canceled at the Veteran's request. See September 2019 Exam Request and June 2020 Exam Request. Also, as a threshold matter, when a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). Regarding the necessity of a VA examination, the Board finds that a VA examination for the issue on appeal was necessary in order to establish service connection. This is the precise reason why the Board remanded this claim in November 2018. The reasons and bases for the denial of service connection are explained in detail below. As to the issue of good cause for failure to appear to the VA examinations, the Veteran has not offered any explanation for his failure to appear for purposes of determining the etiology of any current psychiatric disability. Indeed, the record indicates that Veteran called and cancelled both scheduled examinations. The claims file includes several relevant documents regarding the Veteran's failure to appear: an August 26, 2019 Exam Request with the Veteran's most recent address of record; a September 17, 2019 Exam Request indicating that the scheduled examination was cancelled at the Veteran's request. On June 2, 2020, another Exam Request with Veteran's most recent address of record; a June 8, 2020 Exam Request indicating that the scheduled examination was again cancelled at the Veteran's request. In this regard, the Board is relying upon the presumption of administrative regularity in finding that the Veteran was properly notified of the scheduled August 2019 and June 2020 VA examinations. There is no indication that he was not notified, such as returned mail. To date, the Veteran has not provided good cause or commented on the reason for his failure to report to the examinations. Accordingly, absent any other evidence to the contrary, the Board concludes that the Veteran was properly notified of the scheduled VA examinations. Therefore, in accordance with the applicable VA regulation, when the veteran does not appear for a scheduled examination in conjunction with an original claim for service connection, the claim will be rated on the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, despite the absence of a VA examination addressing the etiology of the service connection claim at issue, the Board will continue to adjudicate the claim on the record before it. The Board finds that VA's duty to assist with respect to attempting to obtain a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). Generally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). Regarding the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually occurred varies depending on the circumstances of the stressor and the nature of a Veteran's service. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not generally suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). A veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304(f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). In rendering a decision on appeal, the Board must also 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). 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. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has PTSD of service origin. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his claimed PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not shown to have the training or expertise to competently render a medical diagnosis of PTSD or an opinion on such a complex matter as the etiology thereof. Id. Therefore, in this regard, the Board must rely on the medical evidence of record. The Veteran's service treatment records (STRs) are silent for diagnosis or treatment of PTSD or any other psychiatric disorder, however the STRs did show the Veteran's complaints of trouble sleeping during his separation examination. The examining official clarified that the Veteran had not seen a doctor for it, had been getting about six hours of sleep per night and did not have any complications related to the complaint. The Veteran separated service with a normal clinical psychiatric assessment. At the February 1977 VA examination for a different disability, the examiner nevertheless noted, under the psychiatric system section of the examination form, that "the personality is intact" and did not identify any psychiatric symptoms. In July 2004, the Veteran reported he was not sleeping, for which he was prescribed Xanax in December 2004. In April 2005, he reported having trouble concentrating and sleeping. In February 2007, he was diagnosed with depression. In a September 2008 medical report from Dr. C., the Veteran's treating psychiatrist, writing in support of the Veteran's Workers' Compensation claim, cited to a work injury which occurred on January 2004 involving his back with lower extremity radiation resulting from lifting objects during his employment. The report noted the Workers' Compensation claim was amended to include a psychiatric component in May 2008, as the Veteran was diagnosed with depression and anxiety related to the work injury. See Medical Treatment Record Non-Government Facility received August 2012. Dr. C.'s report stated the following (emphasis added): On 7/19/04 [the Veteran] submitted an Application for Adjudication of Claim for Workers' Compensation benefits citing a date of injury of 1/27/04 involving his back with lower extremity radiation resulting from lifting. On 5/28/08 the claim was amended to include psyche. .... Despite a successful surgery, [the Veteran] continued to experience a significant level of pain and disability resulting in the development of symptoms of depression and anxiety. He experienced a diminished sense of self-esteem and feelings of sadness, emptiness, inadequacy, and pessimism. He developed disturbances of sleep, appetite, and sexual drive. He became more short-tempered than before and more socially withdrawn. .... At the time that the injury to the psyche occurred, the actual events of employment were predominant as to all causes combined. In other words, the work-related causes constituted greater than 50% of all of the causal factors. In [the Veteran's] case, there was not any indication of any contributive causation to the psychiatric injury by any of the past injuries or personal life stress issues set forth below. The causation of the psychiatric injury would, therefore, be 100% industrial. See August 2012 Medical Treatment Record Non-Government Facility. Additionally, Dr. C. reviewed the Veteran's past personal life stressors and past injury factors to consider whether something else caused or contributed to his then-current diagnoses, including the death of his father and brother, divorce, bankruptcy, the DUI for which he spent three days in jail, paid a fine and had his driver license suspended. However, the Veteran's active duty service was not mentioned as a possible contributing factor. Id., also see August 2012 Medical Treatment Record Non Government Facility. In the November 2011 stressor statement, the Veteran contends that the stressor was his military training wherein he encountered numerous red alerts. See VA 21-0781 Statement. He stated, "I always wake up 2-3 times between midnight and 6:00 A.M., due to restlessness and I think like there is an emergency similar to red alerts." Id. The records indicated that the Veteran's active service with the U.S. Airforce is between May 1971 to May 1975. Although he served during the Vietnam era, his service was in Europe and in the United States, and he was not involved in combat operations. In the November 2011 statement, the Veteran stated current symptoms of anxiety, depression, sleeplessness, on and off for over 20 years. See VA 21-4138 Statement. In the January 2013 statement, the Veteran reported symptoms of "serious mood swings" and irritability. However, the Veteran did not identify service-related stressors or any relationship of current psychological symptoms to service-related issues. See VA 21-4138 Statement. At the January 2013 Sleep Apnea VA examination, the Veteran stated that his sleeping disorder started during active service in 1971 and claimed that he was under "physical and emotional stress" while in service causing sleeping problem. He was diagnosed with insomnia, noted to have been clinically diagnosed in 2007. See Capri May 2013. In May 2013, the Veteran was advised that his reported stressor was not corroborated. He has not since provided additional information or stressor reports. In August 2014, the Veteran's VA treatment provider Dr. S. provided a diagnosis of PTSD, which he noted was based on DSM-5 criteria, but he did not specifically discuss each criterion. The psychiatrist opined that PTSD was caused by persistent recurring alerts in the Air Force. However, he did not provide an explanation for that conclusion. He also noted the Veteran reported having insomnia that started during service, but he did not also diagnose insomnia. Based on the above, there is insufficient evidence to establish that the Veteran has a PTSD diagnosis that conforms to 38 C.F.R. § 4.125. The Board notes that the Veteran's treating doctor indicated he diagnosed the Veteran under the DSM-5, but did not document how, which is essential to the claim. Consequently, the August 2014 record is not probative to the issue, as the provided opinion only applies to the inadequately diagnosed PTSD. There is also insufficient evidence to establish a nexus, or link, between the Veteran's PTSD and his service. His records show current diagnosis and treatment for depression and insomnia. However, as set forth above, the Veteran's separation examination in October 1974 and post separation VA examination in February 1977 were normal for psychiatric systems, which is affirmative and persuasive evidence showing that he did not have a psychiatric disability at time of separation or shortly thereafter. Rather, there is no evidence of any mental health issues until the early 2000's. Indeed, private treatment records show mental health complaints began in 2004, after the work-related back injury with resulting depression and anxiety. Further, Dr. C. set forth a very detailed explanation as to why all his symptoms were entirely work-related, and not connected to his service at all. The Board find's Dr. C.'s report extremely probative as to the issue on appeal. As mentioned, he was scheduled to attend VA examinations to obtain clarifying evidence on a relationship to service, which he cancelled without explanation. Also, the Board has considered the lay statements that the Veteran has presented in this claim. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, a diagnosis and etiology for PTSD, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The record does not indicate that the Veteran has experience or training to opine on the etiology of psychiatric disabilities. As noted in the May 2008 report by Dr. C., the Veteran has also experienced several other stressors which contributed to his psychological disability, such as the work injury, the ability to hold a job subsequent to the injury, continued back pain and the repeated mental decompensations in the workplace. See Medical Treatment Record Non-Government Facility received on August 2012. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for PTSD. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brooks, Jasmine 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.