Citation Nr: 21041413 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-12 006 DATE: July 9, 2021 ORDER Entitlement to a psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a psychiatric diagnosis conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), to include PTSD, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a 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(f), 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to November 1991, including in Southwest Asia. His awards include the Southwest Asia Service Medal with 2 Bronze Service Stars. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). The Board remanded the issue of service connection for PTSD in June 2018 for further development. In August 2020, the Board expanded the issue to all psychiatric disabilities, to include PTSD as stated above, before remanding the claim again for additional development. Service Connection Generally, service connection, to include for an acquired psychiatric disability, may be granted for a disability resulting from disease or injury onset 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 nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). However, with regard to PTSD claims specifically and in addition to the criteria above, service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition pursuant to 38 C.F.R. § 4.125 (a) (conforming to the appropriate edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM)); (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) medical evidence of a link between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The DSM-5 is for application as this appeal was pending before the agency of original jurisdiction on August 4, 2014. 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093, 45099 (effective date provisions); 80 Fed. Reg. 53, 14308 (March 19, 2015) (adopting the final rule recognizing that the DSM-IV was rendered obsolete by the publication of the DSM-5 in May 2013). A description of the Veteran's stressors is stated below. 1. Entitlement to a psychiatric disability, to include PTSD. The Veteran asserts that he has a current diagnosis of PTSD that is directly related to his deployment to Southwest Asia. Specifically, the Veteran states that during his service in Desert Storm he experienced being near the front lines, driving through mind fields, and experiencing feelings of anxiety thinking he may not get home safely. Additionally, the Veteran recounts flying above what he calls a "highway of death" where the aftermath of an attack was visible from the aircraft. The Veteran's military personnel records support that the Veteran was awarded a Southwest Asia Service Medal with 2 Bronze Stars and had a military occupational specialty as an ammunition specialist. See DD 214. His military personnel records note service in Southwest Asia from September 1990 to April 1991. As a result, there is credible supporting evidence that the claimed in-service stressors actually occurred. 38 C.F.R. § 3.304(f). However, the Board finds that the probative evidence of record does not document that the Veteran had a psychiatric diagnosis that conformed to the DSM-5 criteria at any time during the appeal period. As such, service connection is not warranted on direct or presumptive bases for the Veteran's claimed psychiatric disabilities. See 38 C.F.R. § 3.304(f); Martinez-Bodon, 32 Vet. App. 393; Brammer, 3 Vet. App. 223. The Veteran's service treatment records do not reflect complaints of nor treatment for any mental health conditions. The first assertion of a mental health condition noted in the Veteran's file is his November 2012 claim for service condition for a nervous condition the Veteran characterized as PTSD. In November 2013 the Veteran submitted an October 2013 private medical opinion from Dr. J. The Veteran was referred to this provider by "a Veteran's representative." Dr. J noted that all information regarding the Veteran's mental health symptoms, stressors, and past medical history was provided by the Veteran. There is no indication from the report that the provider reviewed the Veteran's file prior to rendering his opinion. The Veteran reported that he served in Desert Storm for 8 months and as a result of the trauma described above, developed PTSD. He further asserts that he did not have these symptoms prior to service but has experienced them since. The Veteran reported to Dr. J that he experiences nightmares but then states he cannot remember the contents of them when he wakes up. He stated he "zones out," has issues with anger, frustration, isolation, and sadness. He stated he has feelings of still being deployed but avoids thinking about those feelings. He reported feeling like things won't work out for him and feelings of being a failure. He reported having low energy and sleeps less than "usual," about 4 hours per night. He stated he has experienced feelings of violence when someone angers him but has not described any instance in which the Veteran actually became violent. The Veteran further reported having a good support system in his wife of over 12 years. He asserted good relationships with his cousins and his daughter. The Veteran self-reported that he was screened for PTSD, manic depressive disorder, panic disorder, and sleep apnea for which he states he meets the criteria. The Veteran denied suicidal ideations but stated he had passive death wishes in the past. However, he reported he has not had these feelings for at least 6 months prior to the date of the examination. In the October 2013 evaluation, Dr. J stated, "the [Veteran] has denied having any treatment from a psychiatrist or any mental health worker in the past." In reference to the Veteran's past medical history he reported having sleep issues from service and issues with edemas in his legs as well as a rash. Dr. J concluded by diagnosing the Veteran with PTSD, major depressive disorder (MDD), and panic disorder with agoraphobia. He was prescribed Trazodone for sleep and Sertraline for anxiety and depression. However, no rationale was provided as to why the Veteran was diagnosed with these mental health disabilities nor was there an opinion given as to whether the diagnoses were related to service. The opinion did not explain how the Veteran met the individual criteria for these diagnoses. Additionally, as stated above, there is no indication from the report that Dr. J examined the Veteran's record prior to providing his opinion. Furthermore, with respect to mental health conditions, compensation is limited to disabilities that conform to the DSM-5 criteria. See Martinez-Bodon, 32 Vet. App. 393. The October 2013 evaluation does not state which version of the DSM was used in providing the Veteran's PTSD, DMM, or panic disorder diagnosis, but it includes a GAF score and Axes I, II, III, IV, and V. These were eliminated by the DSM-5; therefore, these diagnoses do not conform to the DSM-5 and do not meet the standard for a current psychiatric disorder. Id. As a result, Dr. J's opinion is afforded no probative weight on the element of a diagnosed current disability. In November 2013 the Veteran submitted a statement endorsing all of the above listed symptoms. He states that a vehicle he was riding in "hit a mine" but no one was injured. He states he has frequent nightmares about his service despite stating he did not remember the contents of his nightmares during the private evaluation with Dr. J only a month before. The Veteran was provided a December 2013 VA examination. Here, the examiner concluded that there was no current psychiatric disability diagnosis for the Veteran including PTSD, MDD, and panic disorder. However, this opinion was based on the prior DSM-IV criteria and not the current DSM-5 criteria. As a result, this examination is afforded no probative weight on the element of a current psychiatric disability. 38 C.F.R. § 3.304(f); Martinez-Bodon, 32 Vet. App. 393. However, during this December 2013 examination, the examiner documented, "the Veteran noted that he has never participated in [mental health] treatment in the past with the exception [of] a local psychiatrist evaluation that occurred on one occasion in October 2013. A sleep aid was prescribed but the Veteran did not feel that medication was warranted and never filled the prescription but has taken melatonin instead. He did not return for follow up treatment." In the absence of any other identified treatment, this clearly refers to the evaluation by Dr. J. The Veteran was afforded a second VA examination in September 2019. Here, the Veteran recounted the same stressors as noted above. He stated he watches war movies and the examiner stated he did not have any "avoidance reactions of PTSD." The Veteran denied any suicidal or homicidal ideations at this time. The examiner concluded that due to a lack of symptoms, mental health treatment, and effect on social or occupational functioning, the Veteran did not meet the criteria for PTSD or any other mental health diagnosis under the DSM-5. However, the examiner did not discuss all of the stressors reported in lay evidence or in Dr J's evaluation. As a result, this examination is probative to a limited extent: (1) that the stressors of hearing alarms on two occasions, being near smoking vehicles, and seeing a vehicle hit with an explosive device do not meet Criterion A for PTSD under the DSM-5; and (2) that at this examination the Veteran presented no symptoms to meet Criteria B, C, D, E, F, G, and H for PTSD under the DSM-5. During the September 2019 VA examination the Veteran stated, "he has not [had] recurrent treatment for psychiatric issues." It was noted a second time in the examination as well where the examiner asserted, "[the Veteran] has not had any formal psychiatric treatment." The Veteran was afforded a third VA examination in March 2021. Here, the examiner noted that he reviewed the Veteran's file to include all of his past VA examinations and the October 2013 evaluation by Dr. J. The examiner concluded that in accordance with the DSM-5, the Veteran did not have a diagnosis for PTSD, MDD, panic disorder, nor any additional mental health conditions. The examiner further stated that the Veteran does not meet "criteria A for PTSD," nor does he have any avoidance reactions typically associated with PTSD. The Veteran cannot recall any instances of re-experiencing trauma and his record does not show VA or private treatment for any mental health conditions. This would include the October 2013 report as the Veteran stated he was referred to Dr. J by a Veteran's representative as opposed to statements made in the course of treatment. Additionally, the examiner noted that there is no evidence that the Veteran took the medication prescribed for his anxiety and depression nor is there evidence of record to support that the Veteran refilled the prescription. Furthermore, the March 2021 examiner stated that the Veteran reported he may feel sad or angry for a few minutes, but the feelings quickly resolve. This led the examiner to state that the Veteran's mental health has, "no impact on the effect of social or occupational functioning" and that "the Veteran does not have a qualifying stressor for PTSD and does not have the symptomatology related to any other mental health disorder." The examiner stated he reviewed the October 2013 report, to include the prior PTSD, MDD, and panic disorder diagnoses, but finds that there is no evidence to support that the Veteran received treatment for these conditions after the date of the evaluation. The examiner stated that while the Veteran asserts he has a long-term relationship with Dr. J, there are no documents of record to support that assertion. The examiner concludes by stating, "the claimed acquired psychiatric disorders are less likely than not related to an in-service injury, event, or disease." The examiner considered the Veteran's entire VA record, to include past diagnoses, prior to providing an opinion. His determination that no current DSM-5 diagnoses were applicable was due to a lack of symptoms experienced by the Veteran and deficiency in meeting the required criteria for any mental health condition. As the examiner provided an opinion based off of his medical expertise in addition to facts from the record, the March 2021 VA examination is afforded significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of PTSD or any psychiatric disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Diagnosing a psychiatric disorder requires expertise acquired by training, postgraduate education, and often licensure by a state board. The Veteran has not shown he has the qualifications to diagnose himself; his lay evidence, no matter how sincere, is not competent evidence of a current diagnosis. The Veteran is competent to report on the observable symptoms of his claimed mental health conditions, to include the onset of such symptoms. See 38 C.F.R. § 3.159(a)(2). However, the Board finds that due to the inconsistencies in the Veteran's own statements regarding his mental health treatment, he is not a credible source of information regarding his current diagnosis or treatment. In the Veteran's April 2014 notice of disagreement (NOD), the Veteran stated that Dr. J has been treating him for "two years, conducted therapy with the Veteran, and had a long and on-going clinical relationship with the Veteran and made a finding that PTSD caused serious impairment." The Veteran then asserts that his long-standing relationship with Dr. J should provide further weight as to the PTSD diagnosis given in October 2013. However, despite written requests for further mental health treatment records in December 2013, January 2014, September 2014, and an additional verbal request documented in January 2014, no additional medical records were received. Furthermore, in the October 2013 report with Dr. J the Veteran stated he had no prior mental health treatment, yet in April 2014, only 6 months after, the Veteran asserts he has been treated by Dr. J for two years. Additionally, the Veteran himself denied any ongoing mental health treatment in the December 2013, September 2019, and March 2021 VA examinations. In August 2020 the Board remanded the issues of service connection for an acquired psychiatric disorder for further development. The Board decision requested that the Veteran provide a statement regarding the length of time he has been under the care of Dr. J as his statements regarding his treatment do not align with prior statements he made in the record. The Veteran submitted a similar statement again asserting he is "being treated for [his] PTSD by [Dr. J]" but did not offer any additional evidence to this matter. As the Veteran's statements regarding his treatment are inconsistent with not only the record but also previous statements made by the Veteran, his lay assertions are afforded no probative weight in this matter. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board recognizes that in the April 2014 NOD, the Veteran cites to a prior Board decision for a different Veteran to support this claim. However, Board decision are not binding precedent. Further, the facts of the appeal to which the Veteran cites to are distinct from the facts of this case. The Veteran states that in the referenced Board decision, a Veteran's long-standing relationship with his psychiatrist was considered in determining if a current diagnosis was provided. In that case, the Board deemed that an opinion coming from a provider that has a "long and on-going clinical relationship with the Veteran, must be given a great deal of probative value in making the determination in issue." However, in that claim, that Veteran provided the VA with a letter from his private provider that confirmed a long-term relationship whereas in this claim, no such evidence is of record despite a number of requests by VA for that information. The Board finds that there is no evidence of record that provides a psychiatric diagnosis in accordance with the DSM-5 at any time during or recent to the appeal period. Martinez-Boden, 32 Vet. App. 393; Brammer, 3 Vet. App. 223. The March 2021 examiner considered the Veteran's full record to include the prior diagnosis provided in the October 2013 report. However, the examiner found that there was no evidence of record to support a finding that the Veteran had any psychiatric disorders. As a result, a preponderance of the evidence is against finding that the Veteran has a current psychiatric disability under the DSM-5 criteria. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision than set forth herein. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.