Citation Nr: 0812970 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 00-16 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jenny Y. Twyford, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant, C.M., and G.F. ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The veteran had active military service from February 1968 to October 1970. He served in the Republic of Vietnam from August 1968 to October 1970. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2000 rating decision of the Pittsburgh , Pennsylvania , Regional Office (RO) of the Department of Veterans Affairs (VA) that determined that new and material evidence had not been submitted to reopen the claim for service connection for PTSD. The veteran appealed the determination to the Board. In an August 2001 decision, the Board reopened the claim and remanded it for further evidentiary development. The claim was again remanded by the Board in December 2003. In an August 2005 decision, the Board denied entitlement to service connection for PTSD. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2007 order, the Court granted the parties' Joint Motion for Remand, vacated the Board's August 2005 decision, and remanded the matter to the Board. FINDING OF FACT The preponderance of the most probative medical evidence shows that the veteran does not have a current diagnosis of PTSD. CONCLUSION OF LAW PTSD was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. The veteran's claim was initiated in April 2000, prior to the enactment of the VCAA. Nevertheless, the Board notes that there is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in September 2001, February 2003, April 2004, and November 2004 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The veteran is currently represented by an attorney who is aware of the evidence needed to substantiate a claim for service connection for PTSD. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in his possession. While the veteran did not receive full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. The claimant was provided the opportunity to present pertinent evidence and testimony, including at a personal hearing before a Veterans Law Judge in June 2001. The Joint Motion granted by the Court in June 2007 does not mention any VCAA deficiencies. In an October 2007 letter, the veteran was informed that the judge who conducted the June 2001 hearing was no longer with the Board and he was afforded the opportunity for another hearing. He declined an additional hearing. In sum, there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of this adjudication, and the evidence rebuts any suggestion that the veteran was prejudiced. Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes his written contentions, service treatment records, VA medical records, private medical records, and lay statements. 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted 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). 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 the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 that 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). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other credible evidence that supports and does not contradict the veteran's testimony. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). 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." Bloom v. West, 12 Vet. App. 185, 187 (1999). As noted, the veteran served in the Republic of Vietnam from August 1968 to October 1970. His service treatment records show that in November 1968, he complained that he was nervous, shaky, was sweating since that morning, and that he had never had such problems before. When evaluated for headaches in September 1970, he complained of nervousness and it was noted he appeared anxious. An October 1970 service separation examination was negative for a psychiatric disorder. At no time was PTSD diagnosed while on active duty. Presently, the veteran contends that he has PTSD as a result of his military service, in particular due to several stressors that he has recounted in various written statements and personal testimony. There is medical evidence both supporting and contrary to his assertions that he has PTSD. In multiple letters, including ones dated in January 2000, April 2001, March 2004, and July 2005, Lawrence B. Haddad, Ph.D., has reported initially seeing the veteran in January 1998 for treatment for emotional distress. Dr. Haddad related that the veteran had a "long-term marginal adjustment since his return from Vietnam " and he exhibited depressive states and symptoms consistent with PTSD. He concluded that the veteran's Global Assessment of Functioning (GAF) was 35, and that his concentration and attention problems made it impossible for him to perform activities within a schedule, attend to tasks from beginning to end, or sustain any competitive work routine. At a VA examination in September 2001, Martha Schmitz, Ph.D., also diagnosed the veteran with PTSD. Significantly, a VA examination was completed in December 2004. This study was conducted by two psychologists, and reviewed and approved by two additional board certified psychiatrists. These examiners concluded that the veteran did not have PTSD as a result of his military service. Rather, their diagnosis was dysthymic disorder secondary to a personality disorder with borderline features. In weighing the opinions of record, the Board finds the December 2004 VA opinion to be more probative than the other evidence of record showing diagnoses of PTSD, including the statements by Dr. Haddad and the examination report and treatment records prepared by Dr. Schmitz. First, the December 2004 opinion was provided after reviewing the complete record, including all the veteran's medical records, stressor statements, service records, service personnel records, and the reports and documents from the U.S. Armed Services Center for Unit Records Research (USASCURR) (now called the U.S. Army and Joint Services Records Research Center (JSRRC)). There is no indication that either Dr. Schmitz or Dr. Haddad reviewed all of the veteran's records. Hence, the probative value of their opinion that any disorder is related to service is diminished. Second, the December 2004 opinion was rendered based, in part, on the result of psychometric testing that was conducted in conjunction with the examination, including the Mississippi Scale for Combat-Related PTSD as well as the Beck Depression Inventory. Again, neither Dr. Schmitz nor Dr. Haddad reported that they conducted any type of psychometric testing. Dr. Haddad did not provide any reports from clinical sessions, nor did Dr. Haddad refer to any independent evidence which he reviewed in making his diagnosis. Rather, Dr. Haddad merely set forth his diagnosis in virtually identical letters each time he was asked to provide one. This too diminishes the probative value of their opinions. In contrast, the December 2004 VA examiners noted that the veteran's score of 150 on the Mississippi Scale for Combat- Related PTSD suggested over-reporting of symptoms. This was judged to be consistent with his presentation of "stressors" and symptoms during the interview. Additionally, his score of 39 on the Beck Depression Inventory was consistent with extremely severe depression, which they noted was inconsistent with his clinical presentation and daily functioning. In particular, they noted that he maintained relationships with his adult children, often babysitting for his grandchildren, he was active and involved with the Catholic Church as a lay minister and distributed communion to people in the hospital and nursing homes, and he had been involved in romantic relationships since his divorce. He also spent considerable time working on his boat and walking his dog. Hence, the psychometric findings raise grave questions about the credibility of the history provided to Drs. Haddad and Schmitz when considering any suggestion that the appellant has the claimed disorder due to his military service. An August 2005 statement from a friend, G.F. indicated that the veteran regularly vacationed with him. This level of functioning is consistent with VA outpatient reports which indicate that the veteran is involved in his community, and clearly contradicts the unsupported findings of Dr. Haddad, who reported in his letters that the veteran was totally and permanently disabled both socially and occupationally disabled. Finally, the December 2004 VA examiners set forth a detailed report explaining the rationale for their clinical findings and opinions. For example, they noted that the veteran's description of events in Vietnam was vague; he was unable to provide any significant detail and he tended to embellish his stories. The veteran had repeatedly related that he suffered mortar wounds during his service in Vietnam ; however, there were and are no supporting records to support this assertion. The veteran's service treatment records do not indicate that he was wounded in Vietnam. In this regard, the Board observes that the veteran had signed a form while he was in service requesting that his next of kin be notified in the event he was "lightly wounded." Despite the veteran's assertions that shrapnel has been removed from his body, there are no corresponding clinical reports supporting his assertions. The examiners indicated that the veteran's psychometric testing scores were consistent with his presentation of stressors and his exaggeration of symptoms. Once again, these findings raise grave questions about the appellant's credibility. The December 2004 examiners also remarked that although Dr. Schmitz diagnosed the veteran with PTSD due to his military service, their review of her notes indicated that the majority of the veteran's sessions with her dealt with current stressful situations, and not military related stressors. Indeed, in only three of 37 progress notes was Vietnam even mentioned. She noted that the veteran had been abused and neglected during his childhood, and that this had affected his subsequent relationships. Consequently, the December 2004 VA examination report is considerably more probative on the issue of whether the veteran has PTSD as a result of his military service. Winsett; Bloom. Since the preponderance of the most probative evidence shows that the veteran does not have a current diagnosis of PTSD as a result of his military service, the Board finds that service connection for PTSD must be denied. As the Board finds that the appellant does not have a current diagnosis of PTSD as a result of his military service, there is no need to address whether the veteran was exposed to a combat stressor or an independently verified noncombat stressor, nor further evaluate the credibility of the appellant's assertions thereto. 38 C.F.R. § 4.125(a); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent "proof of a present disability there can be no valid claim"). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs