Citation Nr: 22009771 Decision Date: 02/18/22 Archive Date: 02/18/22 DOCKET NO. 19-22 600 DATE: February 18, 2022 ORDER Service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD) and anxiety, is denied. REMANDED Entitlement to service connection for an eye disability is remanded. FINDING OF FACT The Veteran has not been shown to have a current diagnosis of an acquired psychiatric disability, including PTSD or anxiety, at any time since separation from service in September 1952. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, including PTSD and anxiety, have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1950 to September 1952. His awards and decorations include the Combat Infantryman Badge. In November 2020, the Board denied the issue of entitlement to service connection for a lumbar spine disability and remanded the issues of entitlement to service connection for an acquired psychiatric disability, eye disability, bilateral hearing loss, tinnitus, and vertigo for additional evidentiary development. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and vertigo were granted in the September 2021 VA rating decision, which represents a full grant of the benefits sought so they are no longer on appeal before the Board. The remaining issues on appeal have been returned to the Board for appellate review. There was substantial compliance with the November 2020 remand directives for the issue on appeal discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided VA examinations for mental disorders in December 2020, for PTSD in August 2021, as well as VA medical opinions for an acquired psychiatric disability in December 2020 and August 2021. These VA examinations and medical opinions are adequate as they were based on examination and review of the history, and sufficient information was provided to allow the Board to render an informed determination. The issue was also readjudicated in the October 2021 supplemental statement of the case (SSOC). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner 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). Entitlement to service connection for an acquired psychiatric disability, including PTSD and anxiety Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for PTSD when there is (1) medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In November 2017, the Veteran filed a VA Form 21-526EZ requesting service connection for PTSD and anxiety. The Board has recharacterized the Veteran's claims for PTSD and anxiety more broadly to an acquired psychiatric disability, including PTSD and anxiety, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Since the Veteran's separation from active service in September 1952, review of the claims file shows that in April 2018 the Veteran submitted a statement from an unnamed individual who may have been the Veteran's representative. The individual reported the "Veteran is in [his or her] public contact office in reference to his PTSD claim . . . [the Veteran] is suffering from nightmares and flashbacks and intrusive memories . . . [and] [t]he fact that there is no evidence of treatment only reinforces the diagnosis." The unidentified individual also stated that people with PTSD do not want to discuss their stressors. They also stated that the Veteran had a Bronze Star Medal and a Combat Infantry Badge, and provided definitions of "intrusive memories" and "avoidance." In contrast, following a complete review of the claims file and conducting in-person evaluations, the April 2018, December 2020, and August 2021 VA psychiatric examination reports documented and explained why the Veteran does not have or has ever been diagnosed with a mental disorder, including PTSD, under the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, (DSM-5) criteria. The April 2018 PTSD examiner, who is a psychiatrist, found that the Veteran's stressor met Criterion A for a PTSD diagnosis, but the other criteria were not met. The examiner found that the Veteran did not have PTSD or any other mental disorder. She explained that his trauma did not result in impairment marital relations, parenting ability, or social and occupational impairment in other areas of functioning. The December 2020 and August 2021 VA examiners noted review of the claims file, including the April 2018 statement, as noted above, which was obtained and associated with the claims file after the April 2018 VA examination for PTSD. The December 2020 mental disorders examiner, who is a psychiatrist, stated that after reviewing the medical records, taking a psychiatric history, and examining the Veteran, she determined that the criteria for any DSM-5 diagnosis were not met. He had "some occasional feeling[s] of anxiety but these are not a full mental condition." She also noted that the Veteran did not have a history of psychiatric treatment, follow up, or interventions, or emotional crisis intervention. In addition, he did not have any significant social or occupational difficulties. The August 2021 PTSD examiner, who is a psychiatrist, noted that the Veteran had a combat-related stressor that was sufficient to meet Criterion A for a PTSD diagnosis. However, none of the other criteria were met. The examiner noted that the Veteran "presents occasional anxiety," but explained that, "these are isolated, episodic and transitory manifestations and do not conf[i]rm a psychiatric diagnosis." She acknowledged that the Veteran's stressor met Criterion A. However, she explained that his trauma did not cause impairment in marital relations, parenting ability, social, occupation, or other areas of functioning. She stated that, "there is no change in functional status or in quality of life due to trauma exposure." Additionally, review of VA treatment records shows a VA treating physician marked "negative" for any clinical findings for neuropsychiatry in December 2003 and is silent for any indication the Veteran has ever been diagnosed with a mental disorder, including PTSD, under the DSM-5 criteria. The most probative evidence regarding whether the Veteran has PTSD or another psychiatric disorder are the April 2018, December 2020, and August 2021 VA psychiatric examination reports. The VA examiners, who are all psychiatrists, addressed the Veteran's reported psychiatric symptomology and evidence and explained why it did not support a diagnosis of any mental disorder, including PTSD, under the DSM-5 criteria. The Veteran is not a medical professional and is not competent to self- diagnose an acquired psychiatric disability, including PTSD or anxiety. A medical diagnosis has long been required to establish service connection for PTSD. Young v. McDonald, 766 F.3d 1348, 1353-54 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). To receive compensation for a psychiatric disability, there must be a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Based on the evidence of record, the Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on a direct basis have been met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record reflects the Veteran has not been shown to have a current diagnosis of an acquired psychiatric disability, including PTSD and anxiety, at any time since separation from service in September 1952. For these reasons, service connection for an acquired psychiatric disability, including PTSD and anxiety, is denied on a direct basis. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for an acquired psychiatric disability, including PTSD and anxiety, is warranted. Rather, the evidence persuasively weighs against the finding of a current disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, F.4th, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND Entitlement to service connection for an eye disability In November 2017, the Veteran filed a VA Form 21-526EZ requesting service connection for eye condition and noted he had eye surgery during service. During the appeal period, review of the record includes private treatment records that shows clinical findings of nystagmus in April 2018. Most recently, an April 2021 VA examination report for eye conditions shows diagnoses of bilateral intraocular lens, bilateral dermatochalasis, bilateral blepharitis, bilateral pinguecula, bilateral corneal arcus, and bilateral dry eye syndrome. While the April 2021 VA examiner provided medical opinions for the Veteran's diagnoses of bilateral intraocular lens, bilateral dermatochalasis, bilateral blepharitis, bilateral pinguecula, bilateral corneal arcus, and bilateral dry eye syndrome on a direct basis, the VA examiner failed to address the etiology of the remaining diagnosis during the appeal period of nystagmus (even if resolved since 2018) on a direct basis. In fact, the VA examiner noted that "the condition of nystagmus . . . [was] not seen in this [V]eteran at the time of the evaluation" in the April 2021 VA medical opinion and that "no nystagmus seen or reported on medical records" in the June 2021 VA medical opinion. After review of the record, an additional VA medical opinion is needed to address the etiology of the remaining diagnosis of nystagmus (even if resolved since April 2018) during the appeal period on a direct basis. When VA undertakes to provide a VA examination and/or opinion, it must ensure that the examination and/or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the April 2021 VA examination for eye conditions and provided the April 2021, June 2021, and October 2021 VA medical opinions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: An April 2018 private treatment record shows clinical findings of nystagmus The bulk of the Veteran's service treatment records have been deemed fire-related and are not available It is not sufficient to provide an opinion that the Veteran's eye disability is not directly related to an incident of service solely based on the absence of documented treatment, chronicity, or diagnosis for many years after separation from service. The examiner must opine as to whether the Veteran's nystagmus (even if resolved since April 2018) began during active service or is related to an incident of service, to include consideration of the Veteran's assertion of eye surgery during service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.