Citation Nr: 22018580 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-59 117 DATE: March 29, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder, is denied. FINDING OF FACT A psychiatric disability, to include PTSD, was not present during the appellant's active service; a psychosis was not manifest to a compensable degree within the first post-service year; and the most probative evidence indicates that the appellant does not currently have any acquired psychiatric disorder which is causally related to his active service or any incident therein. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from December 1995 to May 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for an acquired psychiatric disorder. In April 2019, the Board, in pertinent part, remanded the issue to the agency of original jurisdiction (AOJ) for additional development. A Supplemental Statement of the Case (SSOC) was issued in June 2020. The June 2020 award of service connection for hypertension constitutes a full award of the benefit sought on appeal with respect to that claim. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including a psychosis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). VA recently amended 38 C.F.R. § 4.125(a) to indicate that a diagnosis of a mental disorder, to include PTSD, must conform to the standards set in the DSM-5. The amendments are applicable to the Veteran's claim. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for claims that were initially certified for appeal to the Board, the Court of Appeals for Veterans Claims (CAVC), or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014, DSM-IV will apply. For all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). As the Veteran's claim was certified on appeal in December 2017, DSM-5 applies to his claim. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran has reported two different stressors that he claims are the cause of his acquired psychiatric disorder. The first incident occurred in May 1997 in Kuwait. The Veteran states that, while performing guard duty, three men approached and would not comply with the directives to halt, and became argumentative. The Veteran says he was scared for his life as one of the men reached under his clothes. The men ultimately surrendered and there is no indication that any weapons were discovered. The second incident occurred in November 1998 in Bosnia. The Veteran stated that he was selected to take part in intercepting and confiscating illegal weapons. He was manning the turret on a Humvee when gunfire took place. There is no indication that the Veteran directly experienced the gunfire; and, in fact, later discussions about this incident verify that the Veteran did not come under fire but only heard the gunfire. The Veteran's service treatment records (STRs) are negative for any complaints or treatments of anxiety, depression, or PTSD. Throughout his time in service there is no indication of alcohol or drug use noted. However, future VA examinations indicate that the Veteran did begin drinking while in service. Following his exit from service, as recently as 2013, the Veteran denied any anxiety or depression. In March 2015, the Veteran was seen at Resilience Counseling Service, by C.C., Psy.D., and described nightmares and thoughts that plague him from events during his time in the military. The Veteran was reported to show symptoms of isolation, hyper vigilance, periods of being emotionally explosive, and difficulty sleeping through the night. Panic attacks were noted. The Veteran was described as deficient in areas such as work, family relations, and judgment due to his depression. This provider, C.C., concluded that the Veteran's anxiety was a result of his military experience, and he was diagnosed with PTSD and anxiety disorder under DSM-IV. No stressor was identified for the PTSD diagnosis. However, the conclusions of C.C. appear to be based solely upon the Veteran's lay reports. The Board notes that mere transcription of lay history as reported by a veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, Vet. App. 406, 409 (1995). Numerous lay statements were submitted by friends and family of the Veteran which all tell a similar story of a man who experiences nightmares as well as anxiety. He is often described as someone who is not a social person and that he has changed from the man they knew prior to service. While the laypersons are competent to report observable symptoms, they are not competent to provide a medical opinion linking the Veteran's acquired psychiatric disorders to his active service, as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, a lay person is not competent to provide an etiology opinion in this case. There is no indication, nor is it contended, that any of those who submitted these statements has medical training or expertise. The Veteran underwent a VA psychiatric examination in August 2015. The April 2019 Board remand deemed this examination to be inadequate due to its failure to fully discuss both of the Veteran's stressors. However, there are relevant elements of this examination that should still be noted. It was at this examination that the Veteran noted he did not actually take fire related to the convoy stressor, but only heard the gunfire. The VA examiner explained that the Veteran's reported stressor in Kuwait in May 1997 was not adequate to support a diagnosis of PTSD. The examiner determined that a PTSD diagnosis was not warranted under DSM-5 and that many of the Veteran's symptoms were likely related to alcohol use disorder. The Veteran has since disputed these claims and believed that, once the Veteran mentioned his alcohol use, that the examiner had heard all he needed to hear, and did not receive a full picture of the Veteran's psychiatric condition. The Veteran was seen at Cone Health in July 2016 by A.C.B., PhD, HSP-P, a licensed psychologist. A note was provided indicating that the Veteran had thus far had six therapy sessions beginning in June 2016. The Veteran was being treated with cognitive behavioral therapy targeting trauma, anxiety, and depression. The Veteran was noted as making solid progress but that further treatment was needed in order to receive the maximum benefit. Diagnoses of PTSD, persistent depressive disorder, and social phobia were noted. However, the etiology of such was not addressed. As noted by the Board in April 2019, it was unclear whether these diagnoses were made consistent with DSM-IV or DSM-5. In any event, Dr. A.C.B. did not offer any opinions as to the question of a nexus between a current psychiatric disability and the Veteran's active service, or identify a stressor upon which the PTSD diagnosis was based. Following the April 2019 Board remand, the Veteran was afforded a new VA examination in December 2019. This examiner diagnosed the Veteran with alcohol use disorder in early partial remission and an unspecified depressive disorder. Notably, the examiner determined that a diagnosis of PTSD under DSM-5 was not warranted. The examiner observed that there was no PTSD diagnosis that conforms to the requirements of the DSM-5 as required by 38 C.F.R. § 4.125(a). The December 2019 VA examiner observed that prior examination reports and opinions had found the Veteran had trouble with relationships, which was at odds with the fact that the Veteran had a healthy relationship with his children and his family. The Veteran indicated in the examination that he had recently lost his license due to a DUI approximately two weeks ago. The Veteran noted that he would not go to grocery stores or restaurants. The Veteran indicated that of the two stressors, the one regarding the convoy of vehicles in Bosnia was worse. However, as noted above, the Veteran has admitted that he did not actually come under gunfire, but only heard it. Following the interview, the December 2019 VA examiner opined that the Veteran's responses regarding intrusive memories of his stressors were not consistent with the cited memories, nor were the Veteran's responses consistent with significant avoidance that would adversely impact his daily life. The Veteran's negative thoughts about himself were not found to be consistent with altered beliefs due to trauma, nor were his responses consistent with self-blame regarding his cited stressor. His answers were also not found to be consistent with strong negative emotions due to military trauma or generalized emotional numbing. The Veteran reported that he started drinking during service with his heaviest time of drinking being in 2006 during his divorce from his first wife. The examiner observed that the Veteran himself related his depression to his marriages. Persistent depressive disorder required feelings of depression almost every day for two continuous years that is not situational. The Veteran reported situational depression regarding his marriage that lifts when he is with his children. The examiner concluded that the current, diagnosed, unspecified depressive disorder was due to the Veteran's marriage and vocational problems. The examiner found it less likely than not that any acquired psychiatric disorder had its onset or is etiologically related to the Veteran's active service. The December 2019 examiner noted the March 2015 private opinion from Resilience Counseling Service, but explained that the examiner in that instance, C.C., was not a licensed psychologist but rather a licensed counselor, although the counselor held himself out as a psychologist. Even assuming arguendo that C.C. is properly licensed as a psychologist and that his diagnoses of anxiety disorder PTSD are competent, such do not support a grant of the benefits sought because the diagnoses were not made under DSM-5 criteria, no stressor was identified upon which the PTSD diagnosis was based, and the opinion was based solely upon the appellant's lay statements. LeShore, supra. There is no indication, nor is it contended, that a psychosis manifest to a compensable degree within one year of separation. Thus, service connection on a presumptive basis is not for application. 38 C.F.R. §§ 3.307, 3.309. The August 2015 VA examiner determined that the appellant's reported Kuwait stressor was not adequate to support a diagnosis of PTSD under DSM-5; and the December 2019 VA examiner determined that the reported Bosnia stressor was not adequate to support a diagnosis of PTSD under DSM-5. There are no probative opinions to the contrary. The Board also finds that the December 2019 VA negative etiological opinion is entitled to great probative weight as the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the appellant, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In Smith v. Wilkie, 32 Vet. App. 332, 340 (2020), the Court held that the Board violates principles of fair process when it changes an earlier favorable credibility determination (or implicit credibility determination) without notifying the claimant or providing him or her an opportunity to respond to the credibility-determination change. To the extent that any implicit credibility determinations were made by the Board in the April 2019 remand, the Board is not reversing any here. Rather, as delineated above, the most probative evidence of record establishes that the Veteran does not have an acquired psychiatric disorder diagnosed under DSM-5 which was incurred in or is otherwise causally related to his active service, a DSM-5 diagnosis of PTSD is not based upon a verified stressor, and a psychosis was not manifest to a compensable degree within one year of separation. The negative opinions of the August 2015 and December 2019 VA examiners regarding the etiology of the Veteran's current psychiatric disorders were based in large part on the Veteran's attributions of his current psychiatric symptoms, regardless of whether the reported in-service stressful incidents indeed occurred. Further, the examiners explained that such reported incidents would not support a diagnosis of PTSD. As the evidence is not in approximate balance and is persuasively against the appellant's contentions, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.