Citation Nr: 1015504 Decision Date: 04/28/10 Archive Date: 05/06/10 DOCKET NO. 08-24 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to February 1974. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the Veteran's claim of entitlement to service connection for PTSD. In a November 2008 rating decision, the RO denied service connection for anxiety, depression, and behavior disorder. While the Veteran has not perfected an appeal as to these issues, the Board will consider all those claims in this decision as they fall under the umbrella of an acquired psychiatric disability. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for PTSD. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis, such as PTSD, that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's mental condition. The Board has recharacterized the issue as noted on the first page of this decision and will analyze the Veteran's current claim under this framework. FINDING OF FACT The Veteran does not have a current psychiatric disability, to include PTSD related to service. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in August 2007 and August 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Both letters also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with a VA examination in October 2008. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. Additionally, VA has attempted on multiple occasions to verify the Veteran's PTSD stressors and sent him letters in October 2007 and November 2007 apprising him of the need to provide further details as to his claimed stressors. However, he has done so. The duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he has an acquired psychiatric disability, to include PTSD related to service. He has not provided stressor details other than to state that as a clerk typist, he saw and heard what was happening to other service members and that he was nervous, scared, and stressed over his assignments and fearful of his life ending. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV), 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. § 4.125. 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 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. 38 C.F.R. § 3.304(f). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) In the present case, there is no medical evidence of a diagnosis of PTSD and certainly not one which conforms to DSM-IV, including for any period of his claim. See infra McLain v. Nicholson, 21 Vet. App. 319 (2007). VA treatment records are silent as to any diagnosis or findings of PTSD. Additionally, on VA examination in October 2008, the examiner noted there was no psychiatric diagnosis. A clear preponderance of the evidence is against a finding that the Veteran currently has a diagnosis of PTSD in accordance with DSM-IV. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, without a diagnosis of PTSD, there is no basis to grant service connection for such. See 38 C.F.R. § 3.304(f). Additionally, VA treatment records noted various diagnoses, to include anxiety and depression. However, as noted above, on VA examination in October 2008, the examiner found that the Veteran did not have a psychiatric diagnosis. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). Further, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has considered the various psychiatric disorders noted in the VA treatment records. Ultimately, the Board finds the medical opinion of the October 2008 VA examiner to be more probative as to the Veteran's appropriate psychiatric diagnosis. Both the United States Court of Appeals for the Federal Circuit and the Court have specifically rejected the "treating physician rule". See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Instead, in offering guidance on the assessment of the probative value of medical opinion evidence, the Court has instructed that such assessment should be based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board initially notes that the various psychiatric diagnoses contained in the Veteran's treatment records did not result from a thorough psychiatric evaluation, but rather from general medical health visits which noted other health issues. Moreover, the October 2008 VA examiner specifically considered the Veteran's complete claims folder and treatment records in rendering his opinion that the Veteran does not have a current psychiatric diagnosis. The October 2008 VA medical opinion was based upon thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). In short, the Board places greater weight of probative value on the medical evidence which supports the conclusion that the Veteran does not have a current acquired psychiatric disorder. The Veteran is competent to attest to his observations of his disability. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994); 38 C.F.R. § 3.159(a)(2). Although the Veteran asserts that he currently has an acquired psychiatric disability, the record does not establish that he has the medical training necessary to offer a competent opinion on matters of medical diagnosis. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (noting that a lay person is not competent to offer opinions that require medical knowledge). The Board has considered the implications of McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the "current disability" requirement is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary' s adjudication of the claim"]. Critically, the holding in McClain is not dispositive in this case because the VA examiner specifically reviewed the claims folder which noted psychiatric disabilities and found that the Veteran did not meet the criteria for an psychiatric disability for a diagnosis on Axis I. In any case, upon weighing the evidence, the Board found that the VA examination report was more probative than the other evidence as noted herein. Accordingly, in the absence of the claimed disability, service connection may not be granted. See Degmetich v. Brown, 104F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection cannot be granted if the claimed disability does not exist). ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs