Citation Nr: 18132244
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-01 134
DATE:	September 6, 2018
Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety is denied.
1. The Veteran does not have a diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders.
2. An acquired psychiatric disorder, to include depression and anxiety, was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease.
1. The criteria for entitlement to service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2017).
2. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2017).

The Veteran served on active duty from November 1968 to November 1971.
This matter comes before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.
The Veteran, as a layperson, is not competent to distinguish between psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran’s original claim for service connection for PTSD has been expanded to include his other possible acquired psychiatric disorders, and the claim has been recharacterized as such on the title page.
Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  
The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).
The Board has reviewed all of the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).
Service Connection for an Acquired Psychiatric Disorder, to Include PTSD
Legal Criteria for Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
Service connection may also be granted for a psychosis, when it is manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 
According to 38 C.F.R. § 3.384, utilizing DSM-5 nomenclature, a “psychosis” includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.
Psychosis NOS (not otherwise specified) has been diagnosed in the Veteran at one time, and is a chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).
The Board notes that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  See 79 Fed. Reg. 149, 45094 (August 4, 2014).  VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit.  As the Veteran’s original PTSD claim was made November 7, 2012, which is prior to August 4, 2014, the diagnosis of PTSD pursuant to DSM-IV is applicable to this appeal.  See 38 C.F.R. § 4.125(a).
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 
Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record.  See 38 U.S.C. § 7104(a) (2012).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).
Evidence and Analysis for Service Connection for PTSD and Other Psychiatric Disorders
The Veteran originally made a claim for service connection of PTSD, asserting that his VA mental health providers had noted he had PTSD and symptoms of other mental health disorders, including depression and anxiety.
The Veteran’s service treatment records are silent for any mention of any psychiatric or other mental-health related issue, whether chronic or temporary, to include his November 1968 entrance examination and his August 1971 separation examination.  The Veteran began receiving general VA medical care in 2001 but June 2001, May 2003, and May 2004 treatment notes showed no mental health symptoms or complaints.  The Veteran was negative for depression and PTSD screens in January 2007 and November 2011. From the initial exposure to VA in 2001 up through August 2012, the Veteran’s records are silent for any mental health-related complaints or observed symptoms.
The Veteran’s first mental health treatment occurred in a VA outpatient facility in August 2012.  A VA licensed clinical social worker (LCSW) who did the initial evaluation diagnosed the Veteran with PTSD by history, based on his “meltdowns” and recorded irritability and anxiety.  Two months later in October 2012, the same mental health provider modified her diagnosis of the Veteran to read adjustment disorder, mixed, rule out PTSD, rule out psychosis NOS, with chronic mood problems of anxiety and irritability, intrusive memories of Vietnam service, possible auditory hallucinations.  The Veteran was prescribed prescription medications and outpatient therapy on a monthly basis.
In November 2013, the Veteran received a VA examination for his acquired psychiatric disorders.  The VA psychologist noted no mental health diagnosis for the Veteran, and also stated that no VA psychologist or psychiatrist had diagnosed the Veteran with PTSD under either DSM-IV or DSM-5 criteria.  This examiner continued, noting that the Veteran had roughly 11 years of treatment in the VA health system, for all disorders, and no provider at documented symptoms of PTSD or made a referral for such.  The examiner considered the PTSD diagnoses from 2012 to have been initiated by the Veteran in a self-reported online assessment and questionnaire, and that the Veteran did not meet current criteria for PTSD.  The examiner also pointed out that any mental health symptoms from the past had no discernable social or occupational impairment.  The examiner interviewed both the Veteran and his spouse of over 40 years for three hours, and concluded that while the Veteran had certain grievances and regrets, they were not consistent with mental health diagnoses.  The examiner commented on the psychosis NOS diagnosis from 2012, remarking that the Veteran did not meet the DSM-IV criteria for that diagnosis of psychosis, and that he observed no symptoms of psychosis in the Veteran.  The examiner did note the possibility of hypnagogic hallucinations but also noted they are prevalent in the general population and indicative of individuals with sleep disorders, with which the Veteran had been previously diagnosed.  The examiner noted the Veteran denied symptoms of depression other than a “few times a year.”  Because no mental health diagnosis was made, whether PTSD or any other, the examiner did not comment further regarding service connection for any mental health disorder.
In December 2015, the Veteran received another VA examination for initial PTSD and Other Mental Disorders.  This examiner noted the Veteran’s mental health symptoms do not meet the diagnostic criteria for PTSD under DSM-5, but noted the Veteran was currently diagnosed with unspecified depressive disorder with anxious distress, “in partial remission (quite possibly full), while on antidepressant treatment.”  The examiner characterized the Veteran’s level of occupational and social impairment as “a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.”  The examiner continued that clinical mental health providers in the past may have reported symptoms suggestive of PTSD, as well as psychosis, but that neither had ever been formally diagnosed by VA psychologists or psychiatrists.  He continued, attributing the Veteran’s reported hypnagogic hallucinations as a function of his long-standing sleep disorders and not related to mental health symptoms or the medication that had been prescribed for those mental health symptoms.  The examiner remarked that he considered the Veteran well-controlled on his current psychiatric medication regimen of risperidone and sertraline.  The examiner opined on the possibility of service connection for unspecified depressive disorder, saying it was not a result of military service.  The examiner’s rationale was that mental health symptoms emerged well after active service due to work stress and chronic, intensifying of health issues such as shingles and diverticulitis within a short period of time.  The examiner noted previous alcohol use but did not consider that to be a current issue.
The Board finds the VA examination reports and opinions to be of great probative value. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing negative etiological opinions. The examiner’s negative opinions were supported by a medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005).
The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a mental health disorder. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in November 1971, to his initial evaluation of possible mental disorders in 2012 to be probative of a lack of nexus between the diagnosed current disability and active service.  A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  
Upon review of the record, the Board concludes that entitlement to service connection for PTSD and/or an acquired psychiatric disorder is not warranted.  The Board notes that the Veteran has been diagnosed with a depressive disorder with anxiety.  Thus, the requirement for a current disability is met for an acquired psychiatric disorder other than PTSD.  
The Board finds that there is no valid diagnosis of PTSD in accordance with either DSM-IV or DSM-5 by any qualified medical examiner.   Proof of a current disability is a threshold to establishing service-connection for PTSD.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Board finds the November 2013 and December 2015 VA examination reports and opinions to be the most probative evidence of record.  The Board notes each examination was performed by a VA psychologist based on extensive and detailed discussion with conclusions based on a review of the Veteran’s complete history and evaluation of current symptoms.  A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  This examiner reviewed the claims file and provided opinions that were sufficiently clear and had well-reasoned rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999).  
There are no competent medical opinions of probative value in favor of a positive nexus to active service from any of the VA examiners or mental health providers.
The Board acknowledges the Veteran’s lay statements contending that his PTSD is related to his service in Vietnam.  The Veteran is competent to report his symptoms of as he can observe them.  See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran is not competent to provide such an etiological opinion relating the claimed condition to service.    
With regard to presumptive service connection for psychosis, the weight of evidence shows no chronic symptoms of these conditions during active service, no continuous symptoms of the conditions since service, and that the conditions did not manifest to a compensable degree within one year of service.  As such, presumptive service connection is not warranted.  38 C.F.R. §§ 3.303, 3.309.    
In sum, the Board finds that PTSD has not ever been diagnosed in accordance with DSM-IV or DSM-5 criteria, and that an acquired psychiatric disorder was not manifest during active service, and is not related to active service.  In addition, after considering the length of time between service and post-service diagnosis, the Board determines that the Veteran does not meet the requirements for any relevant presumptions.  As such, the Board concludes that an acquired psychiatric disorder of any kind was not incurred in active service, and to this extent the Veteran’s claim must therefore be denied.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017).
In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b).
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Setter, Associate Counsel 

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