Citation Nr: 1438515	
Decision Date: 08/28/14    Archive Date: 09/03/14

DOCKET NO.  09-17 342	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, mood disorder, and adjustment disorder.  


REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Betty Lam, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1960 to August 1962. 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina (the appeal was later transferred to the Montgomery, Alabama RO).  

In a January 2008 letter, the Veteran requested a local hearing at the RO, either Video Conference or Travel Board hearing.  Subsequently, the RO scheduled and held a Decision Review Officer (DRO) personal hearing in February 2009.  On the April 2009 Substantive Appeal, the Veteran indicated that he did not wish to have a BVA hearing, and requested a DRO review of his case.  Consequently, the RO sent an October 2011 notice letter to the Veteran informing him that he was provided a DRO hearing in February 2009, and unless he had additional compelling evidence, a second DRO hearing would serve no purpose.  He was then informed that he could request a Travel Board Hearing.  However, the Veteran did not subsequently request a BVA hearing after this notice was sent 38 USCA § 20 704(d) (2013).  

The Board remanded the instant matter in June 2013 and November 2013.  As will be discussed herein, the Board finds that the agency of original (AOJ) substantially complied with the remand order with regards to the claim for service connection for an acquired psychiatric disorder and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

As discussed in the June 2013 remand, the Board has considered whether the issue of entitlement to service connection for PTSD should be read more broadly to include a general claim of entitlement to service connection for an psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).  Given the holding in Clemons, the Board has recharacterized the issue of entitlement to service connection for PTSD to the broader issue of entitlement of service connection for an acquired psychiatric disorder, as is reflected on the cover page.  See Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision).

This claim has been processed through the Veterans Benefits Management System (VBMS) and the Virtual VA claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration of the existence of these electronic documents.  


FINDINGS OF FACT

An acquired psychiatric disorder is not shown to be casually or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge, and was not caused or aggravated by service-connected asbestosis.  


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. §§ 1110, 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102 , 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013).








REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in September 2006 and June 2013.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  

With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), service personnel records (SPRs), Social Security Administration (SSA) records, and all VA and private medical records identified by the Veteran have been obtained and associated with the claims file.  The Veteran was examined by VA at least twice during the pendency of this appeal, and he requested a local hearing at the RO, either by Video Conference or Travel Board hearing in January 2008, but later cancelled, and did not request to be rescheduled.  As such, his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d).  The Board finds that the VA examinations were comprehensive in scope and adequate upon which to base a decision on the merits of the issue on appeal.  The Veteran underwent extensive psychological testing, and was interviewed and examined by a physician.  The reports included a detailed description of the Veteran's medical history, a discussion and analysis of the clinical findings, and provided a rational explanation for the conclusions reached.  

Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009).  

Finally, the case has been subject to prior Board remands.  The RO has obtained adequate medical opinions and all pertinent records are associated with the claims file.  As such, the Board finds that the RO has substantially complied with prior Board remand directives.  Stegall, 11 Vet. App. 268 (1998).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  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).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009).  

Service connection for an acquired psychiatric disorder, to include PTSD requires: (1) medical evidence diagnosing the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed, in-service stressor.  38 C.F.R. § 3.304(f).  

The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy" as established by official records, including recognized military combat citations, or other supportive evidence.  If VA finds that the Veteran engaged in combat with the enemy and the alleged stressor is combat-related, then the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions or hardships of service."  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  If, however, VA determines that the Veteran did not engage in combat with the enemy or that the Veteran engaged in combat with the enemy but the alleged stressor is not combat-related, the Veteran's lay testimony, by itself, is insufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain credible supporting evidence that corroborates the Veteran's statements or testimony.  Cohen v. Brown, 10 Vet. App. 128, 142 (1993).  

The regulations pertaining to PTSD were recently amended and 38 C.F.R. § 3.304(f)(3) no longer requires the verification of an in-service stressor if involving "fear of hostile military or terrorist activity."  Rather, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations.  The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor.  Id.  The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date.  

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury if it involves a complex medical issue.  See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. At 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  Id. At 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. At 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

III.  Analysis

The Veteran contends that he has PTSD as a result of in-service incidents in the Navy, while stationed on the U.S.S. Pyro.  The Veteran reported that someone tried to blow up the ship while he was stationed in it.  He also reported that being in Vietnam territory caused him stress.  Further, he reported that a sailor dropped a shell, and it had to be discarded overboard within a few seconds.  Lastly, he stated that with multiple health problems and the current military involvement in the war again, he had recurring thoughts and fears.  However, the preponderance of the evidence demonstrates that the Veteran does not meet the criteria for a diagnosis of PTSD or any other psychiatric disability for which service connection may be awarded.  

In March 2007, the RO made a formal finding of a lack of information required to verify stressors in connection with the Veteran's service connection claim for PTSD.  

VA treatment records show diagnoses and treatment for PTSD, depression, anxiety, mood disorder, and adjustment disorder.  The Veteran reported that he was not in a combat zone, but served during Vietnam.  VA records show that the Veteran has a mood disorder due to general medical condition.  

In a June 2013, the Board remanded the Veteran's claim for service connection to allow a VA examination to be conducted to determine the nature and etiology of his claimed condition both on a direct and secondary basis, namely, his service-connected disability asbestosis.  The Veteran was subsequently afforded a VA psychiatric examination in August 2013.  The examiner concluded that the Veteran's symptoms did not meet the DSM-IV criteria for a diagnosis of PTSD. Instead, the Veteran was diagnosed with mood disorders due to a general medical condition (chronic low back pain) with depressive features.  The examiner noted that the Veteran completed the Trauma Symptoms Inventory test which yielded invalid results because of over-endorsing symptoms and endorsement of symptoms that are not typical of PTSD.  There is no objective evidence to support symptoms or diagnosis for PTSD.  The Veteran's mental heath records reveals that he was diagnosed with PTSD by a VA social worker based on the Veteran's subjective reports of symptoms without any objective measures to validate as appropriate clinical diagnosis. 

Further, the VA outpatient mental health clinic notes reveal that he is treated for problems with his mood secondary to chronic back pain from a work injury.  The examiner noted that although the Veteran served during the Vietnam era, he did not have Vietnam service.  The examiner noted that in December 1994, the Veteran injured his back (herniated C6-C7 disks) on a truck at work.  In 1995, the Veteran left his job because of his chronic back pain.  In 1997, the Veteran was awarded social security.  

The Veteran also denied any history of diagnosis or treatment for problems related to mood disorders prior to or during his military service.  The Veteran reported that he sought mental health treatment at the Mobile VA outpatient clinic in 2006.  The Veteran reported his stressors in service to include serving on an ammunition ship where a fellow service member attempted to blow the ship.  The Veteran was told about the incident two days later.  The Veteran reported that the Captain informed the crew of the incident so that everyone could avoid future problems.  The Veteran subsequently requested transfer to another duty station which was granted.  The Veteran reported another incident in service where the ship almost capsized during a typhoon.  The examiner opined that the two reported stressors are not sufficient to meet the DSM-IV criteria for PTSD and stated "[i]t is noted that that performance of job duties under difficult or unpleasant conditions, irrespective of how subjectively upsetting they may be, do not qualify for diagnosis of PTSD."  As such, the examiner opined that there is no evidence to support the Veteran's current mood disorder are caused by or related to military service, and that it is at least as likely that his current symptoms of depression and chronic sleep impairment are secondary to his low back pain.  

In November 2013, the Board remanded the claim to specifically address to remaining issue of service connection on a secondary basis, namely whether the Veteran's acquired psychiatric disorder is related to his service-connected asbestosis.  In May 2014, the VA examiner concluded that the Veteran's claimed condition is less likely than not proximately due to or the result of the Veteran's service connected disability, to specifically include asbestosis.  The examiner opined that the Veteran's symptoms of depression are clearly and unmistakably directly related to his chronic low back pain and not his service-connected asbestosis.  The examiner referred to his VA mental health records where the Veteran had consistently reported that his problems with his moods were related to his back pain without any documented mention of his problems due to breathing problems or asbestosis.  Further, the Veteran reported that his depressive symptoms began shortly after he learned that he was not able to continue working in 1995 after sustaining the work injury in 1994.  The Veteran's initial intake to psychiatric care with the VA showed that he was prescribed medication for depression and pain management shortly after he sustained his back injury.  The Veteran also reported that he had no mental health treatment prior to his back injury.  The examiner found that the Veteran's report is consistent with VA psychiatric treatment records in 2006 where he reported symptoms of depression for ten years.    

SSA records obtained by the AOJ in June 2013 also confirm the Veteran's depressive symptoms began after he sustained back injuries at work.  A private treatment record dated in January 1996 diagnosed the Veteran with a herniated cervical disc with intermittent radiculopathy and chronic back symptoms and that "[t]here also seem to be some overlaying depression with this."  A private treatment note dated in May 1997 noted that Veteran was complaining of numbness and tingling in his left arm that it wakes him up at night.  A private treatment note dated in June 1997 stated that the Veteran did not sleep at last night due to his shoulder/lumbar pain.  

The preponderance of the above evidence demonstrates that service connection is not warranted for any psychiatric disability.  The Board recognizes that the Veteran was diagnosed with PTSD in February 2007 by VA social worker.  However, the Board does not find this to be a credible diagnosis.  While the social worker acted as the Veteran's psychotherapist, the August 2013 and May 2014 VA examiner, who is a licensed psychologist, concluded that the Veteran did not meet the DSM-IV criteria based on objective testing.  The Veteran's social worker, however, failed to reference the DSM-IV or its related criteria when asserting that the Veteran suffered from PTSD. As such, the Board finds the opinions of the August 2013 and May 2014 VA psychologist to be more probative than the assertion offered by the Veteran's social worker.

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  But, we are mindful that the Board cannot make our own independent medical determinations, and that the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans, 12 Vet. App. at 30; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source.  In the present case, the Board finds the opinion of the August 2013 and May 2014 VA examiner to be most probative, in that the Veteran's diagnosed mood disorder due to a general medical condition with depressive features is not shown to be casually or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge, and was not caused or aggravated by service-connected asbestosis.  Further, the Board observes that there is no contrary evidence of record.  

As a final matter, the Board recognizes that the Veteran believes he suffers from PTSD as a result of military service.  However, the record does not reflect that the Veteran has the requisite training or expertise to offer such a complex medical opinion.  While he is competent to speak to specific symptoms, such as depression or nightmares, he is not competent to link these symptoms to any specific mental diagnosis.  See Jandreau, supra; see Buchanon, supra.  As such, the Veteran's assertions are insufficient to demonstrate that he in fact suffers from PTSD or any other psychiatric disorder related to military service.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD, depression, anxiety, mood disorder, and adjustment disorder, must be denied.


ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, mood disorder, and adjustment disorder, is denied.  




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs