Citation Nr: 25003232 Decision Date: 03/06/25 Archive Date: 03/06/25 DOCKET NO. 19-23 864 DATE: March 6, 2025 ORDER Entitlement to service connection to an acquired psychiatric disorder is denied. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1966 to June 1968. The issue on appeal arises from a rating decision in August 2017, denying the Veteran's claim for service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). In 2022, the Veteran's appeal was remanded by the Board of Veterans Appeals (Board). The remand ordered an examination to determine the etiology of the Veteran's mental health condition, and to consider the Veteran's stated fear arising from his service in Vietnam. The Board also ordered consideration of secondary service-connection arising from the Veteran's service-connected prostate cancer and erectile disfunction disabilities. A new VA examination was conducted in July 2022, wherein the examiner stated the Veteran previously had a diagnosis of PTSD, but at the time of the examination, only had a diagnosis of delayed sleep phase. The examiner opined that the Veteran's condition was less likely than not related to his military service or to his service-connected disabilities. In November 2022, the Board remanded the case again due to the inadequacy of the July 2022 opinion. The Board noted that although the examiner stated the Veteran had a prior diagnosis of PTSD, the examiner did not explain when the Veteran had the PTSD diagnosis, and whether that timeframe aligned with the period on appeal. The examiner also did not indicate who diagnosed the Veteran with PTSD or when, and did not indicate whether the Veteran's stated fears of hostile military activity were enough to support a diagnosis of PTSD. In regard to the Veteran's delayed sleep phase diagnosis, the examiner did not provide a rationale for her opinion that the diagnosis was not related to the Veteran's military service and did not address secondary service connection. Four additional VA examinations and opinions were provided. In May 2023 the examiner provided an opinion stating the Veteran did not have a prior diagnosis of PTSD, and that his delayed sleep phase diagnosis was not related to or incurred by his military service. In another opinion dated July 2023, the examiner stated that the Veteran does not meet the criteria for PTSD, and his fear of hostile military activity is not sufficient to support a PTSD diagnosis. In an October 2023 opinion, the examiner addressed the delayed sleep phase diagnosis, stating it is not proximately due to or aggravated by the Veteran's service-connected disabilities. In a more detailed opinion in December 2023, the examiner states that it was less likely than not that the Veteran's acquired psychiatric disability (delayed sleep phase) was proximately due to, or the result of, his service-connected disabilities. The examiner also states that delayed sleep phase is caused by a misalignment between circadian pacemaker and desired sleep-wake timing, so would not be caused by the Veteran's other disabilities. In January 2022, the Veteran testified at a Board hearing, providing additional information about his claimed psychiatric disability. In April 2024, the Board issued a remand for lack of compliance with the Board's prior remand directives. The examiner failed to provide a rationale to support the opinion that fear of hostile military activity did not support a diagnosis of PTSD, and the examiner did not explain a rationale for the conclusion that delayed sleep phase was not related to service or aggravated by a service-connected disability. In a May 2024 opinion, the examiner stated that, with a reasonable degree of medical certainty, the Veteran has never had a diagnosis of PTSD. Based on the May 2024 exam, the examiner also concluded that the Veteran no longer meets the criteria for delayed sleep phase. 1. Entitlement to service connection to an acquired psychiatric disability The Veteran contends that, due to his service in Vietnam, he suffers from PTSD or another acquired psychiatric disability. In a January 2022 Board hearing, the Veteran testified about his service on an air base in Vietnam, and recalled experiencing rocket attacks. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of PTSD or another psychiatric disability, and has not had a diagnosis of PTSD at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although VA examiners erroneously believed the Veteran has a past diagnosis of PTSD, in a May 2024 opinion, the VA examiner states the Veteran does not now and has not ever had a diagnosis of PTSD. Over the course of numerous examinations during the pendency of this claim, the Veteran has never met the criteria for a diagnosis with PTSD. As the Veteran acknowledged at his January 2024 Board hearing, the Veteran has never sought mental health treatment or counseling for PTSD or any other psychiatric disorder. Private treatment records and routine PTSD screenings at the Veteran's medical appointments also indicate no diagnosis of PTSD. The Board notes that prior Board remands were concerned over the notion that the examiners were not addressing whether fear of hostile military action was enough to support a diagnosis of PTSD. Presumably this focus was predicated on the reference to a possible PTSD diagnosis, which the Board now concludes never existed. To the extent the focus instead was on the question of whether it is possible the Veteran does have PTSD on that basis, the Board points out that it is now sufficiently clear that the examiners have found the Veteran does not have PTSD. Even if the Veteran does have a fear of hostile military action, this does not by itself, establish that he has PTSD. The examiners were aware of his allegation, but found he did not have PTSD. The VA examiner has also been asked to consider whether the Veteran has any other acquired psychiatric disorder. The Veteran did have a diagnosis of delayed sleep phase. In a December 2023 opinion, the VA examiner stated it was less likely than not related to the Veteran's military service. The examiner also opined that the Veteran's condition was less likely than not proximately due to, or the result of, the Veteran's other service-connected disabilities. The examiner explains that delayed sleep phase is caused by a misalignment between circadian pacemaker and desired sleep-wake timing, so would not be caused by the Veteran's prostate cancer residuals, erectile disfunction, or other disabilities. In a May 2024 opinion, the VA examiner stated the Veteran's symptoms have resolved, and he no longer meets the criteria for a diagnosis of delayed sleep phase. Even if the Veteran had a previous diagnosis of delayed sleep phase, there is no in-service event or incurrence to justify service connection. The Veteran's service treatment records do not contain a diagnosis or complaints consistent with the delayed sleep phase diagnosis, and the opinions of the VA examiners have consistently been that the Veteran's delayed sleep phase was less likely than not related to an in-service injury, event, or disease. Because there is no indication that the Veteran has a current diagnosis of PTSD, entitlement to service connection for PTSD is denied. The Board also considered entitlement to service connection for any other acquired psychiatric disability. The Veteran does not currently have any psychiatric diagnosis. In considering his prior diagnosis of delayed sleep phase, there is no link between the disability and the Veteran's service or service-connected disability, so entitlement to service connection is denied. The evidence is persuasive that the criteria for service connections have not been met. Therefore, the benefit-of-the-doubt doctrine does not apply, and the appeal is denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Swanson, Attorney Advisor 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.