Citation Nr: 0810995 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-33 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office 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 T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from May 1973 to November 1974. He had a period of active duty for training from March 1, 1973, to May 21, 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Service connection for an acquired psychiatric disorder, to include a dysthymic disorder and an inadequate personality, was denied by the Board in decisions in March 1986 and November 1989. The claim currently on appeal is for service connection for PTSD which was not previously denied, and the current appeal is limited to that psychiatric condition. FINDINGS OF FACT 1. The veteran has demonstrated a confirmed, non-combat related inservice incident reported to be a stressor. 2. The evidence of record does not show that the veteran has PTSD related to the confirmed non-combat inservice stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, June 2004 and February 2005 letters to the veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). The information and evidence associated with the claims file consist of the veteran's service treatment records, VA medical treatment records, private post-service medical treatment records, VA psychiatric examinations, and statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. Lastly, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the rating and effective date of an award. For the reasons described below, service connection and/or an increased rating for the claimed disability is being denied and neither a rating nor an effective date will be assigned. As such, there is no prejudice to the veteran with respect to any notice deficiencies related to the rating or effective date. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Factual Background The service treatment records reflect that the veteran was apprehended with marijuana in October 1973. A physician noted that he was psychologically well put together and should be able to cope with his situation and other problems. He fell out of his bunk in 1973. This resulted in a traumatic aneurysm of the left temporal artery. He underwent corrective surgery in March 1974. After the accident, he complained of recurrent headaches but only when he was out at sea aboard his ship. He was not happy aboard ship. He said he was in a tense situation. His headaches were felt to be of a tension type which contributed to his anxiety and problems aboard ship. The diagnoses included situational anxiety. On neuropsychiatric consultation in September 1974, it was noted that he was on unauthorized absence from his ship because he stated that he was afraid he would fall overboard if he went to sea. It was indicated that his main purpose was to get out of the Navy. The impression was inadequate personality. At time of separation, a 1 inch laceration scar on the head was noted. His psychiatric status was normal. VA hospital records reflect that the veteran was hospitalized from June 7, 1985, to June 28, 1985 for complaints of depression and inability to get along with others. It was noted that the veteran related all of his problems to the inservice head injury. While the resulting cyst was removed, the surgery offered no relief from the symptoms that included dizzy spells, headaches with neck tightness, dysphoria, and difficulty in getting along with others. In the past two years, the veteran stated that the dysphoria had increased. He now had insomnia and diminished appetite. Psychological testing was consistent with the clinical diagnosis of dysthymic disorder, with additional impressions of avoidant personality disorder with some dependent, impulsive and aggressive features. Additional VA neuropsychiatric examination in August 1985 resulted in assessment of dysthymic disorder and status post left temporal artery excision with headaches. Service connection for status post left temporal artery excision with headaches was established upon rating decision in September 1985. (The record reflects that the veteran is currently rated at 10 percent disabling for this condition.) This rating decision was also the initial rating determination which denied service connection for an acquired psychiatric disorder (dysthymic disorder and an inadequate personality). In March 1986, the Board confirmed the denial. Of record is a July 1986 statement as submitted by a classmate and fellow serviceman, wherein he reported that the veteran never complained of headaches or depression prior to service, but experienced headaches and depression since sustaining a head injury in service. Also of record is a statement received in July 1986 from the appellant's supervision which indicated that the veteran had missed work due to sickness in June 1986 that included a headache. VA outpatient treatment records dated in September 1986 reflect that the appellant complained of daily left temporal and/or bitemporal throbbing headaches. On physical exam, neurologic findings were essentially unremarkable. There was a well-healed left temporal scar. The impression was that he might have both muscle tension and questionably vascular headaches. Later that month, it was reported that he felt a little better and his headaches had decreased slightly since changing medications. The assessment was that the veteran's claimed changes after sustaining a head injury might constitute an organic affective disorder. VA outpatient treatment reports reflect that in October 1986, it was reported that the veteran had discontinued his medication (Elavil) and was doing very well. He had minimal headaches and no depression, and was sleeping well. On neurological consultation in December 1986, it was noted that a computerized tomography (CT) scan of the head was unremarkable. When examined by VA in August 1988, his complaints included persistent headaches primarily over the left occipital area or center of the head. A neurological evaluation was noted to be normal. The diagnosis was chronic tension headaches. At a hearing in August 1989, the veteran presented testimony regarding the severity of his headaches (7 to 8 per month with duration of about 1 to 2 hours). VA records in the early 1990s show that the veteran's headaches continued. Upon VA psychiatric examination in November 1992, the diagnostic impression was that there was no provisional diagnosis. X-rays of the cervical spine showed arthritic changes in a March 1993 rating action, service connection was established for osteoarthritis of the cervical spine. It was noted that this condition also resulted from the inservice head injury. (The record shows that this condition is currently rated as 60 percent disabling.) Private and VA records throughout the remainder of the 1990s show that the veteran's complaints primarily pertained to his service-connected headaches. These records show treatment from 2000 through 2004 primarily for cervical complaints. He filed a claim for service connection for PTSD in June 2004. It is his contention that this condition was incurred during service and resulted from the head injury when he fell out of his rack. His symptoms included intrusive thoughts, flashbacks, nightmares, distress at exposure to triggers which reminded him of past trauma, detachment from others, sleep disturbance, irritability, and anger. He frequently had depressive symptoms and energy and a depressed mood. In support of the veteran's claim are statements as submitted by J.C.L., M.D., dated in December 2004 and May 2005. These documents reflect diagnosis of PTSD which the physician attributed to the inservice head injury. VA examinations were conducted by two separate physicians in June 2005. Upon initial examination, the diagnoses were chronic adjustment disorder and a personality disorder. Further testing was suggested. Additional evaluation was conducted several days later. At that time, it was noted that the veteran's responses to psychometric testing were all invalid and marked by gross symptoms exaggeration. For example, on the Mississippi Combat PTSD scale, the veteran scored higher than the average combat veteran with PTSD would score. This was highly unusual, given that the veteran never was in combat and his alleged PTSD was related to a fall rather than combat. Other test scores were also noted to include marked elevations based on exaggerated responses. The examiner stated that given the veteran's psychometric testing results, the conflicting psychiatric reports, and his history of personality disorder (particularly the antisocial personality aspect), he did not find PTSD to be a reasonable diagnosis. In summary, the examiner noted that psychometric testing, clinical interview, observations, and review of the claims file did not support a diagnosis of PTSD as a result of the veteran's inservice fall. The final diagnostic impressions were adjustment disorder, chronic, with mixed disturbance of emotion and conduct and personality disorder, antisocial and passive-aggressive traits. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the 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, 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). A personality disorder, according to regulation, is generally recognized medically to represent a developmental condition and, therefore, is not service connectable. 38 C.F.R. § 3.303(c) (2007). Service connection for PTSD, in particular, requires medical evidence establishing a diagnosis in accordance with 38 C.F.R. § 4.125(a) (the diagnosis must conform to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) and be supported by findings on examination), credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 137-38 (1997). Section 4.125(a) of 38 C.F.R. incorporates the DSM-IV as the governing criteria for diagnosing PTSD. A claimed non-combat stressor, as in this case, must be verified, and the veteran's uncorroborated testimony is not sufficient to verify a non-combat stressor. Cohen v. Brown, 10 Vet. App. at 146-47. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Analysis As the veteran does have a privately rendered diagnosis of PTSD, service connection could be established, if it is found that he had stressors that this diagnosis may be related to. "Where there has been an 'unequivocal' diagnosis of PTSD by mental health professionals, the adjudicators must presume that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors). In examining these diagnoses, the adjudicators may reject a claim only upon finding a preponderance of the evidence against a PTSD diagnosis, against the occurrence of in-service stressor(s), or against the connection of the present condition to the inservice stressor(s)." Cohen v. Brown, 10 Vet. App. 128, 153 (1997) (Nebeker, C.J., concurring). The Board notes that the inservice head injury, (the veteran's claimed stressor) has been verified. He is service-connected for residuals of the injury to include cervical arthritis and headaches. The record contains numerous VA examinations over the years since service separation and no VA examiner has diagnosed PTSD. This includes the recent VA examinations conducted in June 2005 where PTSD was specifically ruled out. It is the Board's responsibility to weigh and assess the credibility of the medical evidence of record. Evans v. West, 12 Vet. App. 22, 30 (1998); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In so doing, the Board may accept one medical opinion and reject others. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board may reject a medical opinion that is based on facts provided by the veteran that have previously been found to be inaccurate or because other facts in the record contradict the facts provided by the veteran that formed the basis for the opinion; however, the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Where there was "undisputed, unequivocal" diagnosis of PTSD of record, and the Board did not make a finding that the reports were incomplete, the adequacy of the stressor had to be presumed as a matter of law. Cohen, supra. The sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. West v. Brown, 7 Vet. App. 70 (1994). The Board affords greater probative weight to the VA examiner's opinion from evaluation in 2005 in which it was specifically determined that that the veteran did not have PTSD resulting from inservice stressful events. The private physician who opined otherwise did not review the veteran's medical records and relied upon the history given by the veteran which is an incomplete review of the veteran's psychiatric history. It is not shown that this physician ever treated the veteran, merely conducted an examination. Moreover, he did not have access to the records, as noted above, which showed that the veteran had behavioral problems for many years, as evidenced by his inservice and postservice treatment records, and that there were numerous assessments that his psychiatric problems were chronic adjustment disorder and inadequate personality disorder. PTSD was never diagnosed even though numerous psychiatric examinations were conducted over the years post service. Therefore, the Board finds that the private physician's diagnosis of PTSD was incomplete, as it was not based on a review of the entire record. Moreover, the basis of his opinion is simply not supported by the record in that the record reflects extensive tests were conducted in 2005 to determine if PTSD was present and it was determined that it was not. It is not clear what, if any, specific tests (e.g., Minnesota Multiphasic Inventory, Mississippi Scale for PTSD - both of which were accomplished by VA in June 2005) that the private physician conducted in determining that the veteran had PTSD of service origin. There is not indication in the letters that any particular testing was undertaken. The Board has the fundamental authority to decide a claim in the alternative. Holbrook v. Brown, 8 Vet. App. 91 (1995). In this case, even when it is clear that the veteran experienced the inservice stressful event (the head injury) that he described, his claim would be denied based on the absence of an established diagnosis of PTSD. The Board notes that numerous examinations of record post service did not reflect such a diagnosis. And, the examiner who specifically examined the veteran to determine if PTSD was present concluded that it was not. The Board again places much less probative weight on the findings of the medical personnel treating the veteran that he has PTSD for the reasons stated above. As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Accordingly, service connection for PTSD is not warranted. In reaching this decision, the Board has considered the doctrine of granting the benefit of the doubt to the veteran, but does not find that the evidence is proximately balanced such as to warrant its application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs