Citation Nr: 21015738 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-21 065 DATE: March 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran’s current acquired psychiatric disorder, alternatively diagnosed as unspecified depressive disorder with anxious distress, unspecified anxiety disorder, and adjustment disorder with anxiety, began during active service, or is otherwise related to any specific in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, including PTSD, are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 to November 1967. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. In January 2020, the Board remanded this matter for additional evidentiary development. The RO subsequently scheduled the Veteran for a VA examination for PTSD in August 2020, and obtained VA medical opinions in August 2020 and December 2020 addressing the etiology of the Veteran’s current acquired psychiatric disorder. The Board finds these actions to be in substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Entitlement to service connection for an acquired psychiatric disorder, including 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). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). Certain diseases, to include psychoses, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with an acquired psychiatric disorder characterized as a psychosis within one year of service the above provision is not applicable. The Veteran contends that he has an acquired psychiatric disorder, including PTSD, as a direct result of his military service. The question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. VA treatment reports in February 2010 and December 2014 noted that the Veteran’s PTSD screening was negative. A December 2016 private treatment letter from E.A., M.D., noted that he has been the Veteran’s personal physician since November 1998. Dr. A. indicated that the Veteran was started on Buspar in March 2004 for stress and anxiety. The Veteran did fairly well on this regimen until March 2006, when he began having insomnia, sleep fragmentation, depression, and general anxiety. At that time, he was prescribed Effexor. Dr. A. noted that the Veteran has since been done very well with improved life and work, and that he has never shown any signs of psychosis or suicidal ideations. In January 2017, the Veteran filed his present claim seeking service connection for an acquired psychiatric disorder, claimed as PTSD. In February 2017, a VA examination for PTSD was conducted. Following review of the claims file and examination of the Veteran, the examination report concluded with a diagnosis of unspecified anxiety disorder. The VA examiner further concluded that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5 criteria. A private treatment report, dated in October 2019, noted the Veteran’s complaints of anxiety, and that he wanted to be given a diagnosis. Following a mental status examination, the report concluded with a provisional diagnosis of adjustment disorder with anxiety. It also listed the Veteran’s precipitating stressors of ageing and death of friends. In August 2020, the Veteran underwent a VA examination for PTSD. Following review of the claims file and examination of the Veteran, the examination report concluded with a diagnosis of unspecified depressive disorder, with anxious distress. The VA examiner further concluded that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5 criteria. Initially, the Board concludes that the preponderance of the evidence of record is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no medical evidence establishing a diagnosis of PTSD and/or a link between his current symptomatology and the claimed in-service stressors. Thus, service connection for PTSD must be denied. The evidence of record does establish that the Veteran currently has an acquired psychiatric disorder, alternatively diagnosed as unspecified depressive disorder with anxious distress, unspecified anxiety disorder, and adjustment disorder with anxiety. Thus, the Board shall now focus whether the Veteran’s acquired psychiatric disorder is related to his military service, including his claimed inservice stressors. Based upon a longitudinal review of the evidence of record, the Board concludes that the Veteran’s current acquired psychiatric disorder, alternatively diagnosed as unspecified depressive disorder with anxious distress, unspecified anxiety disorder, and adjustment disorder with anxiety, did not begin during his military service and is not otherwise related to any specific in-service event, injury or disease. A review of the Veteran’s service medical records is completely silent as to any complaints of or treatment for an acquired psychiatric disorder. His October 1967 separation examination listed his psychiatric status as normal, as did a subsequent physical examination in April 1975. Post-service treatment records show that the Veteran was not diagnosed with or received treatment for any psychiatric disorder until 2004, over 36 years after his separation from military service and decades outside of the applicable presumptive period for psychosis. While the Veteran is competent to report having experienced symptoms of anxiety, depression, nightmares, and stress, since service and consistently thereafter, he is not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of his current acquired psychiatric disorder as the Veteran has not demonstrated the necessary medical expertise. This issue is medically complex, as it requires specialized medical education and knowledge of psychological pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, to the extent the Veteran claims he has had ongoing symptoms of anxiety, nightmares, insomnia, and depression since his military service, his contentions of ongoing psychological symptomatology since service have not been consistent and are largely not credible due to internal inconsistency. On medical history reports completed by the Veteran in December 1971 and April 1975, he denied any history of depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. Thus, his contentions are largely not credible due to inconsistency with other evidence of record. The Board gives more probative weight to competent medical evidence of record, which establishes that the Veteran’s current acquired psychiatric disorder, alternatively diagnosed as unspecified depressive disorder with anxious distress, unspecified anxiety disorder, and adjustment disorder with anxiety, is less likely as not related to his military service, including his claimed in-service stressors. The VA examiner in August 2020 opined that it is less likely as not that any of the Veteran’s currently diagnosed psychiatric disorders were incurred in or caused by his military service, including any incident occurring therein. In rendering this opinion, the examiner considered the evidence of record, including the Veteran’s statements, prior to forming this opinion. The VA examiner also physically examined the Veteran and supported the opinion provided with a sufficient rationale. The VA examiner noted the Veteran’s history of traumatic events occurring 53 years ago while serving in Vietnam. While these events were traumatic at the time, the VA examiner concluded that there was no nexus between the reported events and the Veteran’s current reported mental health symptoms. The VA examiner noted that after his discharge from the service, the Veteran earned a Doctor of Jurisprudence degree in December 1970, passed the bar examination on his first attempt in the spring of 1971, then worked as a lawyer for 40 years until he retired in 2015. He has also been in a committed relationship for the past 37 years and remained very active socially, citing many examples, up until recently. The VA examiner noted that the Veteran retired five years ago and that it is not unusual for retired individuals who are of advanced age to take an inventory of life; this is a normal part of the aging process and retirement often provides the necessary time to reflect on one’s life, both positive and negative aspects. The VA examiner noted that the Veteran’s inventory happens to include horrific events that he lived through while deployed in Vietnam; but while he likely had considerable stress at that time, having a history of stressors and meeting the diagnostic criteria for a current diagnosis of PTSD are not synonymous. The examiner opined that the Veteran’s current mental health symptoms meet the DSM-5 diagnosis of unspecified depressive disorder with anxious distress, and this is more likely than not related to the Veteran’s relatively recent retirement. The examiner noted that the Veteran’s previous experiences with depression appear to have been related to various life stressors and his retirement seems to be his most recent life stressor. Although the Veteran attributes his current mental health symptoms to his service in Vietnam, the examiner found no objective evidence to support this conclusion The December 2020 VA examiner opined that the Veteran’s current psychiatric disorder is less likely as not related to his inservice stressors and incidents during service. In rendering this opinion, the examiner considered the evidence of record, including the Veteran’s statements, prior to forming this opinion. The December 2020 VA examiner further reviewed the Veteran’s most recent psychiatric examination in August 2020, and indicated that he concurred with August 2020 VA examiner’s findings and conclusion. The VA examiner noted that the Veteran’s current mental health symptoms meet the DSM-5 diagnosis of unspecified depressive disorder with anxious distress, and this condition is more likely than not related to the Veteran’s recent retirement. The VA examiner’s opinion included an extensive review of the Veteran’s post service medical treatment records, and noted that these records failed to provide any objective evidence to support a relationship between the Veteran’s current mental health symptoms and his service in Vietnam five decades ago. The Board finds that the opinions of the VA examiners herein are adequate, as they are based on a review of the record, examinations of the Veteran, and contain a sufficient rationale. The Board also finds the opinions to be entitled to great probative value. The VA examiners laid out in a comprehensive and detailed report why each found that the Veteran was not currently suffering from an acquired psychiatric disorder relating to his military service, or his reported in-service stressors. The VA examiners also provided a rational with specific references to the Veteran’s medical history and claims file, in support of their conclusions. Finally, the two VA examiners reached the same opinion, and no other contradictory opinions, which are also competent, are of record. While the Board recognizes the Veteran’s honorable service, including his service in the Republic of Vietnam, the weight of the evidence is simply against his claim. The Board is obligated to adjudicate cases consistent with the statutes and regulations governing veterans benefits, and lacks the ability to grant cases on an equitable basis. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.