Citation Nr: 21042417 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-07 966 DATE: July 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder is denied. FINDINGS OF FACT 1. The Veteran does not meet the diagnostic criteria for PTSD. 2. An acquired psychiatric disorder was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 4.125. 2. An acquired psychiatric disorder other than PTSD was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to November 1970. This matter was remanded by the Board in July 2018 and March 2021 for evidentiary development. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD 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. 38 C.F.R. § 3.304 (f) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-5). There is no evidence that the Veteran has been diagnosed with psychoses, which is the only psychiatric disorder identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). The Veteran asserts that he has PTSD or another psychiatric disorder as the direct result of his active service, specifically his combat experience. Personnel records indicate that the Veteran received the Combat Infantry Badge. The Veteran served in combat. In the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b). Specific to PTSD, 38 C.F.R. § 3.304 (f) (2) provides that if a "Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances...the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." Pursuant to section 1154(b) the Board accepts the Veteran's reports specific to combat and pursuant to section 3.304 (f)(2) such reports establish an in-service stressor for purposes of PTSD. It is important to note that the combat rule cannot substitute for competent evidence linking a current disorder to service. While 38 U.S.C. § 1154 (b) relaxes the evidentiary burden for a combat Veteran, it is important to note to what section 1154(b) pertains. "Section 1154(b) deals with the question whether a particular disease or injury was incurred or aggravated in service - that is, what happened then - not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required." Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Service treatment records do not document any relevant complaints, symptoms, treatment, diagnoses, or other notations. Psychiatric evaluation at the September 1970 separation examination was normal. In the accompanying Report of Medical History, the Veteran specifically denied nervous trouble of any sort, frequent or terrifying nightmares, depression or excessive worry, and any other potentially relevant symptoms. However, as noted above, the Veteran experienced the hardships of combat. This is a relevant in-service incurrence. The Board remanded this matter in March 2021 because it determined that the evidence was unclear as to whether the Veteran has a diagnosis of PTSD based on the combat stressor and whether a separately diagnosed psychiatric disorder was related to service. There was conflicting medical evidence, mainly January 2014 and May 2017 VA examinations and a March 2018 Disability Benefits Questionnaire (DBQ) completed by a private psychiatrist/psychologist. At the January 2014 VA examination, the examiner determined that the Veteran did not meet the diagnostic criteria for PTSD, but did provide the diagnosis of depressive disorder NOS, resolved. The examiner opined that the resolved depressive disorder was less likely than not related to service. She notes that the Veteran sought psychiatric care in 1992 due to an extramarital affair and that the medical evidence does not support a relationship between service and the depressive disorder. At the May 2017 VA examination, another examiner determined that the Veteran did not meet the diagnostic criteria for PTSD, but that he did meet the diagnostic criteria for major depressive disorder. The examiner opined that major depressive disorder was less likely than not related to active service, to include combat experience. The examiner cites psychiatric, occupational, and social history. The Veteran submitted a March 2018 PTSD DBQ completed by a private psychiatrist or psychologist (it is unclear). The private examiner determined that the Veteran met the diagnostic criteria for PTSD and detailed many of the Veteran's reported stressors, which are consistent with combat. As noted by the July 2018 Board Remand, the examiner provided no further comment or rationale. As a result, the Board Remanded for a clarifying medical opinion, as this private examination represented the first evidence of a PTSD diagnosis. There is a November 2020 VA examination and medical opinion of record. However, as the March 2021 Remand found deficiencies with this opinion, the Board will not discuss it. It is of note that it is does not support the Veteran's claim. Pursuant to the March 2021 Remand, an April 2021 VA examination report and corresponding medical opinion were issued. The examiner determined that the Veteran did not meet the diagnostic criteria for PTSD but did meet the criteria for major depressive disorder. The examiner explained that based on an examination and a review of the entire claims file, the Veteran did not meet the symptoms criteria for PTSD to include persistent re-experiencing, avoidance, increased anxiety and emotional arousal. Specific to the diagnosed major depressive disorder, the examiner opined that it was less likely than not related to the Veteran's active service, to include combat. The examiner cites post-service treatment records indicating that the Veteran sought psychiatric treatment in 1992 due to an extramarital affair and related legal/child support issues. The Veteran again sought formal treatment in August 2013 at the VA, citing marital and family stressors. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the private medical examination and diagnosis of PTSD to be of less probative value than the January 2014, May 2017, and April 2021 VA examinations of record. The private examiner fails to provide any supporting rationale to support his conclusion that the Veteran meets the diagnostic criteria for PTSD. In this contrast, the Board finds that the January 2014, May 2017, and April 2021 VA opinions provide thorough rationales as to why the Veteran does not meet the diagnostic criteria for PTSD. Similarly, they provide well-reasoned opinions as to why the separately diagnosed depressive disorder is not related to service. The Board finds these VA medical opinions to be highly probative. They provide unequivocal and detailed medical opinions supported by pertinent rationale based upon a review of the claims file, when concluding that the Veteran does not meet the diagnostic criteria for PTSD and that the diagnosed depressive disorder is unrelated to service. The Board notes that the examiners rendered the opinions after thoroughly reviewing the claims file and relevant medical records. The examiners noted the Veteran's pertinent history and provided reasoned analyses of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board has also considered the lay statements of record. Here, the Veteran is competent to report his observations and relate what he was told by medical professionals. The Board acknowledges the Veteran's assertion with respect to the claimed psychiatric disorder, to include PTSD. However, the credible medical evidence is clear that the Veteran does not meet the diagnostic criteria for PTSD. After a review of the medical evidence of record, the Board has determined that the weight of the evidence shows that the Veteran has not met the diagnostic criteria of PTSD during the period on appeal. The probative evidence of record includes three VA examinations conclusively determining that the Veteran did not meet the diagnostic criteria. See Madden, supra. These medical opinions outweigh the private diagnosis, in part due to the lack of rationale provided by the private examiner. After a review of this evidence, the Board finds that the more probative evidence of record shows that the Veteran does not meet the diagnostic criteria for PTSD, and instead has met the criteria for a depressive disorder. As a result, service connection for PTSD is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Specific to the Veteran's variously diagnosed depressive disorders (depressive disorder NOS and major depressive disorder), service treatment records show no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of a psychiatric disorder. As noted above, the record is clear that the Veteran experienced the hardships of combat, and this certainly amounts to an in-service event. However, as noted above, the Board finds the medical opinions of the January 2014, May 2017, and April 2021 VA examiners that the Veteran's depressive disorder is less likely than not related to service, but rather related to marital and family matters, to be highly probative. Regarding the Veteran's assertion that his depressive disorder is directly related to service, the Board finds that these statements are less probative than the opinions of the VA medical professionals, as they are far more detailed and reasoned. The Board finds that the probative value of the lay assertions is outweighed by the clinical evidence of record. The evidence of record suggests that the Veteran's depressive disorders were diagnosed many years after service and are related to post-service personal factors. Nothing at that time suggested a history dating back to service. There is no medical evidence of record documenting manifestations of these disorders or any other relevant disorders in service. The contemporaneous records establish that the psychiatric evaluation was normal upon separation. The more probative evidence establishes that the Veteran did not have these current disorders during service, that such disorders are not related to any event in service, and that they are likely related to post-service incidents. The evidence establishes that the remote onset of the depressive disorder is unrelated to service. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder. The claim must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.