Citation Nr: 0813160 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 98-07 711 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from March 1966 to June 1969. He served in Vietnam from March 1967 to March 1968. This appeal to the Board of Veterans Appeals (Board) arises from June and December 1997 rating actions that denied service connection for PTSD. In May 2000, the veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. By decisions of December 2000 and October 2003, the Board remanded this case to the RO for further development of the evidence and for due process development. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The competent, persuasive medical evidence shows that the veteran does not have a current valid diagnosis of PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations essentially include, upon the submission of a substantially- complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claim on appeal has been accomplished. June 2001 and May 2004 post-rating RO letters informed the veteran and his representative of the VA's responsibilities to notify and assist him in his claim, and of what was need to establish entitlement to service connection for PTSD. Thereafter, he was afforded opportunities to respond. The Board thus finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit such information and evidence. Additionally, the 2001 and 2004 RO letters provided notice that the VA would make reasonable efforts to help the veteran get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information, and if needed, authorization to obtain them. Those letters further specified what records the VA was responsible for obtaining, to include Federal records, and the type of records that the VA would make reasonable efforts to get, and the 2004 letter requested the veteran to furnish any evidence that he had in his possession that pertained to his claim. The Board thus finds that the 2001 and 2004 RO letters collectively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by him; and (4) a request by the VA that the claimant provide any evidence in his possession that pertains to the claim. As indicated above, all 4 content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matter now before the Board, documents meeting the VCAA's notice requirements were not, nor could they have been, furnished to the veteran prior to the 1997 rating actions on appeal, inasmuch as the VCAA was not enacted until 2000. However, the Board thus finds that the delay in issuing the full 38 U.S.C.A. § 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided, as reflected in the May 2003 and January 2008 Supplemental Statements of the Case (SSOCs). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.2006). As indicated above, the veteran and his representative have been notified of what was needed to substantiate his claim, and afforded numerous opportunities to present information and/or evidence in support thereof. As a result of RO development and the Board remands, comprehensive documentation, identified below, has been associated with the claims folder and considered in connection with the veteran's appeal. Hence, the Board finds that any failure on the part of the VA in not completely fulfilling VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2005). More recently, in March 2006, 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 of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 5 elements of a service connection claim (veteran status, the existence of a disability, a connection between the veteran's service and that disability, the degree of disability, and the effective date pertaining thereto). In this case, the veteran's status and the degree of disability are not at issue, and he and his representative were notified of the effective date information in the January 2008 SSOC, thus meeting the notice requirements of Dingess/Hartman. Additionally, the Board finds that all necessary development on the claim currently under consideration has been accomplished. The RO, on its own initiative and pursuant to the Board remands, has made reasonable and appropriate efforts to assist the appellant in obtaining all available evidence necessary to substantiate his claim, to include obtaining all available service medical and personnel records, and pertinent post-service VA medical records through 2006. A transcript of the veteran's May 2000 Board hearing testimony is of record. He was afforded comprehensive VA psychiatric examinations in July 1997, May 1999, April 2003, and April 2006. In October 2002, the U.S. Armed Services Center for Unit Records Research furnished copies of pertinent military unit histories, operational reports, police summaries of combat activities, and U.S. Army casualty data lists. In April 2007, the National Personnel Records Center furnished copies of military morning reports. Significantly, the veteran has not identified, nor does the record otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. In May 2003 and March 2006, the veteran stated that he had no additional evidence or information to submit in connection with his claim. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection requires a finding of a current disability that is related to an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it 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 current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). The veteran contends that he has PTSD as a result of his military service, and he gave testimony in this regard at a May 2000 Board hearing. In this case, the service medical records show the veteran's complaints of nervous trouble, but are completely negative for findings or diagnoses of PTSD. Post service, no psychiatric pathology was found on February 1970 VA examination, 8 months following separation from service. July 1988 VA outpatient records show a diagnosis of anxiety with depression. The first indication of a question of PTSD was noted in May 1997 VA outpatient records, but that impression was noted together with anxiety, and there is no indication that it was arrived at after review of the veteran's military and medical history and comprehensive psychiatric examination or psychometric testing. When seen again in June 1997, the psychiatric impression was only anxiety. Although the impressions in July 1997 were anxiety/depression/PTSD, a May 1998 outpatient examiner felt that the veteran needed treatment for alcohol and/or PTSD symptoms, and several subsequent VA outpatient records from 2000 to 2002 variously noted anxiety and depressive disorders and alcohol abuse along with a history of PTSD, none of these outpatient records indicate a valid diagnosis of PTSD conforming to 38 C.F.R. § 4.125 that was arrived at after review of the veteran's military and medical history, consideration of his claimed inservice stressors, and comprehensive psychiatric examination and psychometric testing of the veteran. Thus, the Board finds that the post- service medical findings indicating the possible existence of PTSD from 1997 to 2002 are not persuasive medical evidence of a valid diagnosis of PTSD. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Rather, the Board finds that the competent, persuasive medical evidence in this case, as shown by many comprehensive VA psychiatric and psychological examinations from 1997 to 2006, consistently shows that the veteran does not have a current valid diagnosis of PTSD. On July 1997 VA psychiatric examination, the physician reviewed the claims folder, including recent VA psychological test results that mainly indicated depression, and a "fake- bad" result with respect to PTSD. After a comprehensive review of the veteran's medical, educational, military, family, and personal history, and current mental status examination of the veteran, the examiner commented that the veteran spoke mainly of depression and some alcohol use, but that some mentioned PTSD symptoms seemed to be exaggerated, and he opined that the veteran was showing genuine depression and alcohol use, but that he probably did not meet the criteria for PTSD. On May 1999 VA psychiatric examination, the same physician who examined the veteran in July 1997 reviewed the claims folder and the veteran's medical, educational, military, family, and personal history. After current mental status examination, the examiner commented that the veteran's depression seemed to be worse since he was last seen, and he seemed to show more anxiety, panic, and withdrawal. The veteran mentioned some tests for PTSD, but the doctor opined that he did not seem to meet the full criteria for PTSD. The diagnoses were depression and complaints of panic with multiple anxiety. On April 2003 VA examination to establish whether or not the veteran had a valid diagnosis of PTSD, the examiner reviewed the claims folder, including service and post-service medical records, post-service VA outpatient records showing various psychiatric impressions including possible PTSD, and the veteran's family, educational, occupational, medical, and military history. After current mental status examination, the doctor opined that the veteran did not meet the criteria needed to establish a diagnosis of PTSD. Psychometric testing indicated that the veteran's validity scales suggested that he was faking, and that his scores were probably invalid; malingering and exaggeration of problems also need to be ruled out. The examiner stated that the veteran had a tendency to endorse more symptoms of PTSD and to present a clinical picture that did not seem to fit most veterans with this diagnosis. The primary diagnosis was alcohol dependence, with another diagnosis of personality disorder (as likely as not). The examiner concluded that it was not likely that the veteran had PTSD in the true clinical sense, although he did have some of the symptoms. However, his PTSD symptoms appeared to be exaggerated and over- endorsed, and his verbal behavior and emotional level did not suggest that such problem existed. On April 2006 VA examination to establish whether or not the veteran had a valid diagnosis of PTSD, the examiner reviewed the claims folder, including service and post-service medical records, post-service VA records showing various psychiatric impressions including possible PTSD, and the veteran's family, educational, social, occupational, medical, and military history. After current mental status examination and psychological testing, the examiner's assessment was that the veteran presented with a number of credibility problems. He gave information that was not suggestive of true PTSD. Although he identified stressors, he was fairly vague in this identification, and it seemed that he was not necessarily an eyewitness to some of the specific things which he stated were most stressful to him. Furthermore, his claimed PTSD symptoms were low in frequency. Thus, the examiner opined that a causal link did not exist between the veteran's claimed stressors and his current symptoms. Psychometric testing produced an extremely exaggerated response set consistent with previous perceptions of malingering that could not be ruled out. The final diagnoses were depressive disorder and alcohol abuse, neither of which the examiner felt were service connected. As indicated above, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 2002). Where, as here, the competent, persuasive evidence does not provide valid indicia of the disability for which service connection is sought (and hence, no evidence of a nexus between that disability and service), there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the record does not contain competent, persuasive medical evidence of the existence of a current valid diagnosis of PTSD, the Board finds that service connection for that claimed disability is not warranted. In addition to the medical evidence of record, the Board also has considered the assertions of the veteran and his wife, variously advanced in written statements and hearing testimony, in connection with the claim on appeal. However, as laymen without appropriate medical training and expertise, the veteran and his wife simply are not competent to render a probative (persuasive) opinion on a medical matter-such as whether he currently meets the diagnostic criteria for PTSD. See 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 layman is generally not capable of opining on matters requiring medical knowledge). The Board emphasizes that medical matters such as diagnosis, causation, and etiology are solely within the province of trained medical professionals. See, e.g., Jones v. Brown, 7 Vet. App. 134, 137 (1993). Hence, the assertions of the veteran and his wife 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 to this appeal. 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. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs