Citation Nr: 0810294 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-12 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 to February 1971 and from October 1991 to October 1993, with additional service in the North Carolina Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2004 rating decision in which the RO, inter alia, denied the veteran's claim for service connection for PTSD. In September 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2005, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2005. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Although the record includes a number of assessments and diagnoses of PTSD, the weight of the competent, probative evidence establishes that the veteran does not meet the diagnostic criteria for PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a February 2003 pre-rating letter and a June 2005 post-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The June 2005 VCAA letter specifically informed the veteran to submit any evidence in his possession pertinent to the claim on appeal. The February 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the February 2003 letter. After issuance of the January 2005 letter, and opportunity for the veteran to respond, the August 2005 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Regarding the Dingess/Hartman notice requirements, the RO provided the veteran with information as to the assignment of disability ratings and effective dates in a March 2006 letter. Although the RO did not readjudicate the claim after issuance of this letter, the decision herein denies the claim for service connection. Thus, no disability rating or effective date is being, or is to be, assigned. Thus, there is no possibility of prejudice to the veteran under the requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records, National Guard records, service personnel records, VA and private treatment records, and the reports of January and February 2005 VA examinations. Also of record and considered in connection with the claim are various statements provided by the veteran or by his representative, on his behalf. The Board notes during VA treatment in August 2004, the veteran reported that he had been receiving Social Security disability for approximately the past year for "depression." The Social Security Administration (SSA) decision is not of record, however, the veteran was not awarded SSA benefits for PTSD, but rather, as he stated, depression. There has been no argument that the SSA records are pertinent to the claim being adjudicated in this decision as to require that additional adjudication resources be expended to obtain these records. See 38 U.S.C.A. § 5103A(b),(c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). 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 in-service stressor occurred. 38 C.F.R. § 3.304(f) (2007). The first requirement for service connection for PTSD is a medical diagnosis of the condition. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV) (2007). Considering the claim for service connection in light of the above-noted authority, the Board finds that the claim must denied because the preponderance of the evidence establishes that the first criterion for a grant of service connection for PTSD is not met. The veteran asserts that he has PTSD that is related to various stressors in service. In an April 2003 stressor statement, he reported that his convoy was hit in Vietnam and that he witnessed casualties. He described seeing a good friend step on a land mine, resulting in the loss of both legs, and killing many enemy soldiers, whose bodies were then placed in a large hole, covered with diesel fuel, and burned. In his September 2004 NOD, the veteran reported that the base he served on in Vietnam was repeatedly attacked. The pertinent evidence of record includes the veteran's service medical records and National Guard records, which include no findings or diagnosis of PTSD. Records of VA treatment from February 1973 to December 2004 reflect an August 1982 finding of PTSD. The veteran's diagnosis in November 1996 was anxiety disorder, questionable paranoia, rule out bipolar, and history of PTSD. In February 2004, the veteran was referred for neuropsychological assessment by psychiatry to determine the extent and nature of cognitive dysfunction. The veteran was seen on two occasions for five hours of testing, one hour of interview, and four hours of test interpretation and report writing. The psychologist noted that, while scales associated with PTSD were elevated, the validity of the veteran's responses were questionable, due to possibly even greater exaggeration of symptoms on this latter part of the measure than on earlier items associated with mood and thought disorder. The diagnosis was depressive disorder, not otherwise specified. The impression during treatment in August 2004 was PTSD, with possible psychotic features, depressive disorder, not otherwise specified, and rule out cognitive impairment. The most recent record of VA treatment, from December 2004, indicates that the veteran was carrying a diagnosis of probable schizophrenia, chronic, and questionable depression. Records of private treatment from the Goldsboro Psychiatric Clinic from May 2003 to June 2004 reflect findings of and treatment for PTSD. The veteran was afforded a psychiatric evaluation in May 2003. He reported that he served in the Army from 1967 through 1970, and spent a total of 18 months in Vietnam, where he served with the 4th Division in Field Artillery. He described PTSD symptoms since his return from Vietnam. The Axis I diagnosis was PTSD, chronic. On Axis IV, the psychiatrist noted combat in Vietnam. The psychiatrist opined that, because of the veteran's service- connected PTSD, he was unable to sustain work and social relationships and, therefore, would consider him permanently and totally disabled and unemployable. In a June 2004 letter, the veteran's psychiatrist noted that, while in Vietnam, the veteran witnessed injuries and deaths of numerous fellow soldiers, and that he and the places he was staying frequently received incoming fire. The Axis I diagnosis was PTSD, chronic, and combat in Vietnam was again indicated on Axis IV. The psychiatrist added that, because of the veteran's service-connected PTSD, he was still unable to sustain work and social relationships and therefore, he considered him permanently and totally disabled and unemployable. The veteran was afforded a VA examination in January 2005. The veteran described difficulties beginning in 1971, stating that he felt, "all closed up." He reported serving in Pleiku in Vietnam in the 105th Battery, 45th Group. The veteran described several post-military stressors, including several serious motor vehicle accidents. When asked about military stressors, the veteran described his convoy being hit, and his friend being wounded. The veteran reported visiting his friend at the hospital, but that he never returned to the unit. When asked about any other traumatic experiences, the veteran said, "We were hit all the time." The examiner acknowledged review of the claims file and discussed the veteran's medical record, including the May 2003 report from the Goldsboro Psychiatric Clinic. On examination, the veteran endorsed almost every symptom in DSM-IV for PTSD. The examiner stated that, because of the rather sharp disparity between past diagnoses, and the somewhat rather perplexing current presentation of the veteran, and in the best interest of obtaining a further evaluation, it was his opinion that the veteran should have psychological testing to ascertain the true nature and extent of his current symptomatology and complaints. The Axis I diagnosis was depressive disorder, not otherwise specified. As such, in February 2005 the veteran was afforded a VA psychological evaluation for his claimed PTSD. The veteran described service in Vietnam, where he was stationed at Pleiku. He reported being involved in small arms combat and coming under fire. He added that, while he was not injured, he did see others wounded and killed at least weekly. When asked to describe his worst experience in Vietnam, the veteran described seeing his good friend killed when their convoy was attacked. The examiner acknowledged review of the claims file and discussed the evidence, including the veteran's April 2003 stressor statement and May 2003 private psychiatric evaluation. The examiner noted that the May 2003 evaluation, although noting a multitude of PTSD symptoms endorsed by the veteran, gave no recounting of traumatic experiences or other corroborating information. The veteran endorsed every symptom for the DSM-IV PTSD diagnosis. Trauma were related as seeing his friend die in convoy, feeling numb at that time, and reexperiencing this as well as fire fights experienced on a daily basis. The examiner stated that, if taken at face value, the duration and clinical significance of the veteran's reported symptoms, would meet the DSM-IV criteria. However, the examiner noted that the veteran's response to psychometrics was characterized by gross symptom overreporting on the MMPI-2, to such a degree that the instrument was invalid for diagnostic purposes. The examiner added that the veteran's responses on this test included endorsement of highly unusual and bizarre items that were not typically endorsed by even acutely psychotic inpatients, but that his responses gave no indication of inconsistency of report, as measured by other validity scales, that would have suggested confusion or inability to comprehend the items themselves. Given the veteran's response to the MMPI-2, he was given the M-FAST interview, a standardized measure of potential malingering and symptom exaggeration. On this measure, the veteran placed well above the conservative cut off used to indicate an invalid symptom report that is not typical of actual psychopathology. As such, the examiner opined that the veteran's report of "heavy" combat exposure and PTSD symptoms that were nearly one standard deviation above the mean for actual combat related PTSD appeared to be of questionable reliability. In summary, the examiner stated that, despite the veteran's report of every DSM-IV PTSD symptom, and a multitude of extreme and unusual psychotic-like symptoms, he could not endorse a diagnosis of PTSD due to his apparently unreliable symptom report as documented by psychometrics. In addition, the examiner noted that the veteran's display, while often vague and involving content of extreme psychopathology, did not involve actual display of disorganization and congruent psychotic behavior during interview. The examiner added that the veteran's report of many of his symptoms being present since military service did not seem to match earlier records of VA treatment. He also noted that there was some indication of symptom incongruence during the veteran's prior psychological evaluations. The examiner, therefore, concluded that, until a more reliable evaluation of the veteran could be obtained, he would continue a prior diagnosis of depression, based on the claims file history. The Axis I diagnoses were depressive disorder, not otherwise specified, by history, and rule out malingering. Following this VA examination, in June 2005, a psychiatrist from the Goldsboro Psychiatric Clinic sent a letter in which he reported that he had examined the veteran in April, when he reported serving in Vietnam for 18 months, where he received much incoming and witnessed people being killed. The veteran reported that he started having nightmares in 1971 and that he continued to have nightmares at least six times per week, flashbacks at least four or five times a week, and panic attacks seven to ten times a week. The Axis I diagnoses were PTSD, chronic, and chronic major depression. On Axis IV, the psychiatrist noted Vietnam War stressors. The Board notes that the medical evidence of record contains conflicting evidence on the question of whether the veteran actually meets the diagnostic criteria for PTSD, consistent with the first criterion for a grant of service connection for PTSD. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. The Board acknowledges that records of VA treatment from April 1982 and August 2004 and the records of private treatment from Goldsboro Psychiatric Clinic all indicate that the veteran has a diagnosis of PTSD. However, such diagnoses are of limited probative value. In this regard, while the August 2004 record of VA treatment notes that the veteran was carrying diagnoses of PTSD and depression related to combat, both the April 1982 and August 2004 records of VA treatment include findings of PTSD without relating the diagnosis to a specified stressor. Moreover, neither of these records of VA treatment reflects that the claims file was reviewed or that the veteran was afforded psychological testing. Regarding the medical records from Goldsboro Psychiatric Clinic, the May 2003 and June 2004 evaluations also did not relate the veteran's PTSD to a specified stressor, but, rather, only listed combat in Vietnam on Axis IV. Neither of these two reports of evaluation reflects that the psychiatrist reviewed the claims file. While the June 2005 letter from the veteran's psychiatrist relates the diagnosis of PTSD to Vietnam War stressors, including receiving incoming fire and witnessing people being killed, there is, again, no indication that the claims file was reviewed prior to rendering a diagnosis. In addition, the private psychiatric records do not reflect that psychological testing, such as the MMPI-2, was conducted. Hence, as the medical records that reflect diagnoses of PTSD were not based on review of the entire claims file, did not include psychological testing, and, in some cases, did not link PTSD to a particular stressor, the Board finds that this medical evidence is not probative evidence on the question of whether the veteran actually meets the diagnostic criteria for PTSD. In a June 2005 statement, the veteran asserted that the diagnosis of PTSD from the private psychiatrist should be afforded greater probative weight because of his longstanding treatment of the veteran. The veteran's representative reiterated this argument in his February 2008 Informal Hearing Presentation. However, the Court has expressly declined to adopt a "treating physician rule" that would afford greater weight to the opinion of the veteran's treating physician over the opinion of a VA or other physician. See, e.g., Winsett v. West, 11 Vet. App. 420 (1998), citing Guerrieri v. Brown, 4 Vet. App. 467 (1993). By contrast, the Board finds probative the opinion of the February 2005 VA examiner, who concluded that the veteran did not meet the criteria for a diagnosis of PTSD. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file, and discussing the evidence, including previous diagnoses of PTSD, examining the veteran, and conducting psychological testing. The examiner also provided bases for his conclusion that he could not endorse a diagnosis of PTSD, specifically, the veteran's unreliable symptom report, as documented by psychometrics, his presentation, and inconsistencies between the veteran's report and the medical evidence of record. Thus, the Board finds that the most probative medical evidence to address whether the veteran, in fact, meets the diagnostic criteria for PTSD according to DSM-IV, the medical opinion obtained for the express purpose of clarifying a sharp disparity between previous diagnoses, weighs against the claim. As the preponderance of the competent evidence establishes that the first criterion for service connection for PTSD, a medical diagnosis of the condition, has not been met, service connection for PTSD cannot be established, and the Board need not address the remaining criteria for service connection for PTSD. See 38 C.F.R. § 3.304(f). In addition to the medical evidence, in adjudicating this claim, the Board has considered the appellant's and his representative's written assertions; however, none of this evidence provides a basis for allowance of the claim. As the appellant and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative opinion on a medical matter, such as whether the veteran's symptoms meet the diagnostic criteria for PTSD in accordance with DSM- IV. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs