Citation Nr: 23009809 Decision Date: 02/15/23 Archive Date: 02/15/23 DOCKET NO. 18-55 269 DATE: February 15, 2023 ORDER Entitlement to service connection for psychiatric/cognitive disability, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against finding that the Veteran had any psychiatric disability (to include PTSD) at any time during or approximate to the pendency of his claim. 2. The evidence persuasively weighs against finding that the Veteran's cognitive disability had its onset in service, manifested to a compensable degree within the first post-service year, or was otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for psychiatric/cognitive disability are not met. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1958 to June 1960. This matter initially came before the Board of Veterans' Appeals (Board) from a May 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a July 2019 hearing and a transcript of the hearing has been associated with his claims file. In November 2019, the Board remanded this matter for further development. The Veteran subsequently died in June 2020 and the appellant, who is his surviving spouse, was substituted for the Veteran with respect to the issue on appeal in July 2020. In July 2022, the Board again remanded this matter for further development. In the November 2019 and July 2022 remands, the Board directed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran/appellant to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, obtain all outstanding VA treatment records, afford the Veteran an examination with respect to his claimed psychiatric/cognitive disability, and obtain a medical opinion as to whether any such disability was related to service. Pursuant to the Board's remands, the Veteran/appellant were asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of letters dated in November 2019, December 2019, August 2022, September 2022, and October 2022. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letters. Also, all outstanding VA treatment records were obtained and associated with the claims file, a VA psychiatric examination was conducted in January 2020, and a VA medical opinion was most recently obtained in November 2022. As explained below, the Board finds the November 2022 opinion to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for psychiatric/cognitive disability, to include PTSD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Organic diseases of the nervous system are included among the list of chronic diseases. Although entitlement to service connection may not be established on any of the presumptive bases noted above, a claimant is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 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). In this case, the Veteran contended that he had psychiatric/cognitive disability which was related to psychiatric stressors in service. The Board finds, for the following reasons, that the Veteran did not experience any psychiatric disability, to include PTSD, at any time since his service connection claim was received in September 2014 or prior thereto. Cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While there is evidence that the Veteran had current cognitive disability at the time of his death, the claimed disability is not shown to have had its onset in service or within the first post-service year, or to have been otherwise related to a disease or injury in service. A January 2020 VA psychiatric examination report indicates that the Veteran had a DSM-5 diagnosis of major neurocognitive disorder, probable Alzheimer's and vascular with behavioral disturbance. Therefore, he had current cognitive disability at the time of his death. There is no evidence of any other DSM diagnoses during or approximate to the claim period. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), aff'd sub nom. Martinez-Bodon v. McDonough, 28 F.4 th 1241, 1247 (Fed. Cir. 2022) (a valid DSM-5 diagnosis is required to warrant compensation for a psychiatric disability). The Veteran contended that his claimed disability was related to his service in Korea, during which he was under stress while "holding off North Koreans," performed guard duty, and witnessed a canon accident (see an April 2015 VA Form 21-0871). He did not contend, and the appellant does not now contend, that he experienced a continuity of psychiatric symptomatology in the years following service. However, the Veteran did report during the January 2020 VA psychiatric examination that he received some mental health treatment during service. He was competent to report psychiatric treatment during service. However, his reports must be weighed against the other evidence of record and their credibility must be assessed. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran's service personnel records reflect that he served in Korea from November 1958 to December 1959. However, there is no evidence of any complaints of or treatment for psychiatric or cognitive problems in the Veteran's service treatment records and his June 1960 separation examination was normal. The earliest clinical evidence of potential psychiatric/cognitive disability following service is reflected in the report of the January 2020 VA psychiatric examination, during which the appellant reported that she began to notice changes in the Veteran's memory in approximately 2000 and that changes in his mood were noticeable approximately 3 years prior to the January 2020 examination. The Board acknowledges that there is lay evidence of earlier psychiatric problems in that the Veteran reported that he received mental health treatment during service. As explained below, however, the Board finds that the Veteran's reports as to the history of his claimed psychiatric/cognitive disability (to include his reports of psychiatric problems in service) are not credible. The absence of any clinical evidence of psychiatric/cognitive problems for approximately four decades after the Veteran's separation from active service in June 1960 is one factor weighing against a finding that his current psychiatric/cognitive disability was present in service or in the year or years immediately after service. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue)." Moreover, there is information and statements which are inconsistent with the Veteran's report of psychiatric problems/treatment in service. As explained above, he reported during the January 2020 examination that he received mental health treatment during service. However, he reported on a June 1960 report of medical history form completed for purposes of separation from service that he was neither experiencing, nor had he ever experienced, any frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. Also, he reported that he had never been a patient in a mental hospital or sanatorium and that he had not consulted or been treated by any clinics, physicians, healers, or other practitioners within the past 5 years. Moreover, the appellant reported during the January 2020 VA psychiatric examination that she did not believe the Veteran's report of mental health treatment during service to be true. Rather, he seemed to be referring to seeing doctors for physical, not mental, issues. The appellant reported that she met the Veteran right after he left service and that he did not appear to have any mood issues at that time. In light of the fact that there is no evidence of any complaints of or treatment for psychiatric/cognitive problems in the Veteran's service treatment records, the fact that his June 1960 separation examination was normal, the absence of any clinical evidence of psychiatric/cognitive problems for decades after the Veteran's separation from active service, and the information and statements provided by the Veteran and the appellant that are inconsistent with the Veteran's reports of psychiatric problems in service, the Board concludes that the Veteran's reports concerning the history of his claimed psychiatric/cognitive disability (including any reports of psychiatric problems in service) are not credible. In addition, the only competent, probative opinions on whether the Veteran experienced psychiatric disability and whether there was a relationship between his cognitive disability and service weigh against the claim. The neuropsychologist who conducted the January 2020 VA psychiatric examination explained that the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD. He reasoned that while the Veteran had previously reported potential traumatic stressor events, he denied experiencing any traumas while in Korea during the January 2020 examination and he denied any re-experiencing symptoms or emotional distress in relation to any events from his service in Korea. Also, the appellant did not report the onset of any mood issues until after the Veteran's cognitive issues (which were secondary to Alzheimer's disease) had progressed significantly. The January 2020 examiner also opined that it was not likely ("less likely than not"/"less than 50 percent probability") that the Veteran's major neurocognitive disorder, probable Alzheimer's, and vascular with behavioral disturbance began during service, manifested within one year after discharge from service, or was otherwise related to an in-service injury or disease, including his reported stressors in service. There was no specific explanation or rationale provided for this opinion. In November 2022, a VA psychologist reviewed the Veteran's claims file and opined that his claimed disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The psychologist reasoned that there is research to support a finding that cognitive impairment/dementia has a greater chance of occurring if someone has been diagnosed with PTSD. However, it was not likely ("less likely than not") that the Veteran had any mental health or psychiatric disability (to include PTSD or depression) that was incurred in service. He did not have any memory of the events in service due to his dementia, and could not have PTSD without memory of the traumatic events. Therefore, it was not likely ("less likely than not") that he met the criteria for PTSD. Moreover, the VA psychologist explained that prior to the Veteran's memory impairment/cognitive impairment/dementia, it was not likely ("less likely than not") that he had been suffering from any mental health issues from his time in service, as evidenced by his own reports, his screenings from mental health professionals, and the appellant's reports. The psychologist referenced information from the January 2020 examination report and indicated that the appellant reported during the examination that the Veteran did not have any issues until his memory began to decline in 2000. This supported a finding that the Veteran did not likely have any mental health disorder from service. Therefore, if he did not have any mental health disorder from his time in service, such as PTSD, it was not likely ("less likely than not") that there was any mental health disorder that resulted in his dementia/neurocognitive impairment disorder. The January 2020 opinion that the Veteran's major neurocognitive disorder, probable Alzheimer's, and vascular with behavioral disturbance was not related to service is of limited probative value because it is not accompanied by any specific explanation or rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The January 2020 opinion that the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD and the November 2022 opinion, by contrast, are based upon examination of the Veteran and/or a review of his treatment records, and consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Therefore, these opinions are adequate and entitled to substantial probative weight. Id. Additionally, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive questions presented in this case (i.e., whether the Veteran experienced any specific DSM psychiatric or cognitive diagnosis or whether any relationship existed between his claimed disability and service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether the Veteran experienced PTSD or any other specific DSM diagnosis, or whether there was a link between his claimed psychiatric/cognitive disability and service, where there is no evidence of any such disability for decades after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran did not indicate that he had such experience, and the appellant does not now indicate that she has such experience. Their opinions on the questions of the presence of a specific DSM diagnosis and of nexus are therefore not competent evidence in this instance. There is no other evidence that the Veteran experienced any DSM diagnosis other than major neurocognitive disorder, probable Alzheimer's and vascular with behavioral disturbance, or that there was any relationship between his claimed psychiatric/cognitive disability and service, and neither the appellant nor her representative have alluded to the existence of any such evidence. Thus, the most persuasive evidence is against a finding that the Veteran's claimed psychiatric/cognitive disability had its onset in service or within the first post-service year, or that it was otherwise related to service. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for psychiatric/cognitive disability is warranted. Rather, the evidence persuasively weighs against the claim. 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, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.