Citation Nr: 25003391 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 18-12 987 DATE: March 11, 2025 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD (hereinafter an acquired psychiatric disorder) is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of PTSD. 2. The persuasive evidence of record demonstrates that an acquired psychiatric disorder, to include depression and anxiety, did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2022, the Board issued a decision denying the appeal of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (Court) contesting the Board's September 2022 decision. In October 2023, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded the claim to the Board for further proceedings consistent with the JMPR. A May 2024 Board decision remanded the claim for additional development. The Board finds that the RO has substantially complied with the Board's prior remand order as a VA examination and an adequate medical opinion was obtained in December 2024, which specifically addressed the evidence directed by the Board. Dyment v. West, 13 Vet. App. 141 (1999). As a procedural matter, the Board notes that, on January 17, 2025, the Veteran requested that the Board grant him an extension following the issuance of the December 12, 2024, supplemental statement of the case (SSOC). Under 38 C.F.R. § 19.52(c), where an SSOC is furnished, a period of 30 days from the date of mailing of the SSOC will be allowed for response. An extension of the 30-day period for responding to an SSOC may be granted for good cause provided the request for extension is made in writing and made prior to the expiration of the 30-day time limit for response. See 38 C.F.R. § 19.53. A denial of such a request is separately appealable to the Board. Id. Although no action was taken on the request for an extension, as more than 30 days have elapsed since the date of the request, the Board finds the request for the extension is now moot as the Veteran is entitled to only one review on appeal. See 38 U.S.C. § 7104. The Veteran is entitled to a decision, and notice of his appellate rights relating thereto, regarding any request for extension. See 38 C.F.R. § 19.53; Cf. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board notes more than 30 days have passed since the Veteran's extension request; and that the Veteran has had the opportunity to submit additional evidence to the Board in the interim. See 38 C.F.R. § 20.901. Indeed, the Veteran and his representative were both informed of the process for submitting additional evidence and the Veteran has had the full response period following the December 12, 2024, SSOC, as well as more than 30 days since January 14, 2025, when the Board advised him that his appeal had returned for disposition, yet no additional evidence has been received. Further, the January 17, 2025, request for an extension following the December 12, 2024, SSOC was made after the expiration of the 30-day time limit for response. See 38 C.F.R. § 19.53. Therefore, the Board will proceed to consider his appeal. In addition, the Veteran testified before the Board in a December 2021 hearing, but the Veterans Law Judge (VLJ) who presided over the hearing is no longer available. Accordingly, the Board sent the Veteran a letter on January 15, 2025, advising him that the VLJ who previously presided over his December 2021 hearing was no longer available and provided him a 30-day window in which to indicate whether he desired a new hearing. To date, however, neither the Veteran nor his representative requested a new hearing. The original notice letter references 30 days from the date of the letter to request a new hearing. Here, more than 30 days have passed since actual knowledge of the letter (the Veteran reported in his January 17, 2025, correspondence that he was aware of the January 15, 2025, letter) and the Veteran has still not requested a new Board hearing. The Board notes the Veteran's representative was also sent a copy of and thus in receipt of the letter. Further, the Board notes there is a presumption of regularity in the law to the effect the presumption of regularity supports the official acts of public officers, and in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties. Romero v. Tran, 33 Vet. App. 252, 261 (2021). Thus, the Board finds additional notice is not needed given the Veteran's actual knowledge of his right to request a hearing and his lack of request to do so. The Board finds notice is now sufficient, the Veteran has not indicated he desires a new hearing; therefore, the Board finds no prejudice in the decision here. Finally, the Board notes the evidence of record includes treatment and diagnoses of depression and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that VA should have considered alternative current conditions within the scope of the filed claim, and that diagnoses which arise from the same symptoms for which the claimant was seeking benefits do not relate to entirely separate claims not yet filed. Thus, in light of the Court's decision in Clemons, the Board has re-characterized the issues on appeal as entitlement to service connection for PTSD and service connection for an acquired psychiatric disorder, to include depression and anxiety. Clemons, 23 Vet. App. 1. Service Connection The Veteran and his representative contend that he has an acquired psychiatric disorder, to include PTSD, which was caused during the Veteran's service. For example, the Veteran stated that he has PTSD as a result of a boat fire during service. See December 2021 Hearing. See also September 2012 statement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 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). In addition, 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. See 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in service stressor. See 38 C.F.R. § 3.304(f)(2). The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. §§ 4.125(a), 4.130. In this case, the Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the claims for service connection for PTSD or any other acquired psychiatric disorder. First, the question for the Board is whether the Veteran has a current diagnosis for PTSD or any other psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As for the claim for PTSD, following an in-person examination and after reviewing the Veteran's file, the December 2024 VA examiner opined that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner considered the mention of PTSD in the VA medical records in 2022 from T.W., and found there was no stressor in service, but rather that the report of his stressor was confined to his claims process, the appeals process, and when asked about that situation specifically. The examiner further opined that the Veteran's "anxious distress can appear similar to symptoms seen with PTSD such as feeling on edge, restlessness, and worry about something happening. It is my clinical opinion he is presenting with anxious distress and not PTSD. PTSD would limit his anxiety only to his claimed traumatic event and there is evidence of anxiety for many other stressors, and in the context of his depressed mood." The Veteran's VA medical records also show that screenings for PTSD were noted as negative. See June 2014, September 2019, and September 2024 PTSD screenings. In addition, a June 2013 VA Memorandum made a formal finding of a lack of information required to corroborate the Veteran's claimed stressor. Specifically, the Memorandum states that VA determined that the information required to corroborate the stressful event described by the Veteran was not available to send to the US Army and Joint Services Records Research Center (JSRRC) and/or not available to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. It also noted the efforts made to obtain the information necessary to corroborate the stressful event. Further, while the Veteran believes he has a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. See 38 C.F.R. § 3.304 (f); Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify). Accordingly, the Veteran's statement that he has PTSD, by itself, is not probative, and is outweighed by the medical evidence discussed above. Based on the above that there are no verified in-service stressors upon which a diagnosis of PTSD could be made and an explicit finding that the Veteran does not have signs or symptoms of PTSD, the Board concludes that the Veteran does not have a current diagnosis of PTSD. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). As such, service connection for PTSD is therefore not warranted and must be denied. As for an acquired psychiatric disorder other than PTSD, per the December 2024 VA examiner, the Veteran has been diagnosed with moderate recurrent major depressive disorder, with moderate anxious distress and severe alcohol use disorder. As such, the first element of service connection, a current disability, has been met. However, although the Veteran has been diagnosed with various other psychiatric disabilities other than PTSD, the evidence is against finding that these began during active service, or were otherwise related to an in-service injury, event, or disease. Specifically, service treatment records (STRs) and service personnel records do not reflect complaints, findings, or a diagnosis of any psychiatric disabilities during the Veteran's active service. The May 1977 Report of Medical History, the Veteran reported having no history of problems with trouble sleeping, depression, excessive worry, frequent nightmares, loss of memory, amnesia or nervous trouble of any sort, and a May 1977 Report of Medical Examination revealed normal findings of the psychiatric system upon examination. The Board acknowledges the September 2012 VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD, wherein the Veteran reported that, in October 1974, a fire broke out in the engine room on the boat, and they extinguished the fire after about an hour and a half, but he did not report there being any casualties. The Veteran also testified during the December 2021 Board hearing as to this event causing him PTSD. However, there is no credible and probative lay or medical evidence indicating the Veteran's acquired psychiatric disabilities, including depression and anxiety, are related to this or any other in-service incident or event. Rather, the post service medical records reflect these disabilities were initially reported in 2014 and thereafter, approximately 38 or more years following his separation from active service. In fact, other than the Veteran filing a claim for PTSD, the medical records show that the Veteran outright denied any history or current complaints involving psychiatric issues. For example, although the June 2014 medical record noted that the Veteran was positive for anxiety, the June 2014 examination found the Veteran's judgement and insight to be good and his assessment was related to alcohol abuse with a negative screening for PTSD. In February 2015 and July 2015, he denied anxiety and depression. In February 2018, he reported concerns regarding his alcohol abuse, and he was advised that his usage would cause health issues and risks, to include depression and anxiety. In July 2019, he denied having any anxiety or depression. In December 2021, he was given anxiety medication, but this was related to feeling anxious about the medical procedure he was about to undergo. A January 2022 and March 2023 depression screening was negative, and in March 2023, he denied having any anxiety, depression, or PTSD symptoms. It was in February 2024 that he underwent a mental health initial evaluation as to his reported depression; approximately 47 or more years following his separation from active service. He was diagnosed with uncomplicated alcohol dependence, and cannabis use with unspecified cannabis-induced disorder. In giving the benefit of the doubt in favor to the Veteran as to his claim, the May 2024 Board remand requested a VA examination and opinion to consider the medical records that had mentioned anxiety (i.e., that he had been given anxiety medication, although that had been related to feeling anxious prior to undergoing a procedure). A such, an examination was obtained in December 2024. The December 2024 VA examiner provided the diagnoses for major depressive disorder with anxious distress and severe alcohol abuse disorder. The examiner stated that the Veteran's Hearing transcript was reviewed when he discussed fear of confined places after being on a boat in service which was on fire, and he had to go into the engine room but noted that the Veteran had not discussed this with the examiner. The examiner also noted that the Veteran did demonstrate anxiety but more so "about a variety of situations and he [is not] reporting anxiety specific to his claimed past trauma. He has worry about everyday things, to include finances, his marriage, and other daily stressors." The examiner also noted that while the Veteran reports he had a stressor in service, "the report of this stressor is confined to his claims process, the appeals process, and when asked about that situation specifically." The examiner also noted that the Veteran had reported in his 2024 Substance Abuse Treatment Program (SATP) that he first started drinking heavily every day about 10 years prior, which was about 30 years post-service. The examiner also noted the Veteran stated during the examination that he drinks to "run from one thing to the next." The Veteran reported that his stressors include "feeling responsible for his brothers as the oldest of five, marital issues, financial stress, and the death of some of his brothers." The examiner also noted that the Veteran's also reported the in-service stressor that he claimed as PTSD, but the examiner opined that "this is an additional stressor, his alcohol use [is not] in response to this stressor solely or even primarily." As such, the December 2024 examiner, after a full examination and considering the evidence of record, opined that it less likely than not that the Veteran's diagnosed major depressive disorder (MDD), with anxious distress and alcohol use disorder originated during, or is etiologically related to, active-duty service. As discussed, the examiner determined that it was the Veteran's "reported stressors of finances, marital issues, responsibility of being the oldest of five, and death of his brothers, these stressors are the primary reason for the onset of his MDD and substance use." The examiner further opined that, "while [the Veteran] does report an event in service which he continues to think about, his overall diagnostic presentation [is not] defined by that event. Rather, this event has become more problematic for him as his stressors overall have increased. He [did not] seek [mental health] services or start to abuse substances until other stressors in his life were present." In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the December 2024 examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and furnished a reasoned analysis for the conclusions. The Board therefore attaches significant probative value to this opinion. There is no other competent medical opinion to the contrary. Finally, while the Veteran believes his acquired psychiatric disorder is related to an in-service injury, event, or disease, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized knowledge of mental disorders and psychiatric medicine. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's findings. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the evidence persuasively weighs against the Veteran's claims, the doctrine does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Therefore, the Veteran's claims for service connection for PTSD and for an acquired psychiatric disorder, to include depression and anxiety, is denied. L.M. YASUI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Hoy, 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.