Citation Nr: 0814848 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 96-13 777A ) DATE ) ) Received on appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from June 1970 to October 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey. The case was transferred to the RO in Nashville, Tennessee. In a September 2000 Order, the United States Court of Appeals for Veterans Claims (Court) vacated a May 1998 Board decision. In January 2002, the Board remanded this issue for additional development and readjudication under the revised criteria of 38 C.F.R. § 3.304(f), to request treatment records, and because the veteran had submitted additional evidence. In a February 2006 Order, the Court vacated a September 2004 Board decision, and remanded the matter to the Board. The February 2006 Joint Motion reflects that the September 2004 Board decision was vacated and remanded on the issue of service connection for PTSD because of inadequate reasons and bases on the questions of current diagnosis of PTSD and the occurrence of in-service stressful events. In June 2006, the Board remanded the issue of service connection for PTSD to obtain treatment records and afford the veteran a psychiatric examination and medical opinion. That development has been completed, and the case was returned to the Board for further appellate consideration. The June 2006 Board remand referred to the RO an informal or inferred claim for service connection for major depressive disorder, based on the February 2006 Joint Motion suggestion that the evidence of record raised an informal or inferred claim for service connection for major depressive disorder. In a December 2007 supplemental statement of the case (SSOC), the RO noted the non-PTSD psychiatric diagnoses, and even discussed questions of aggravation in service and misconduct for substance abuse in service; however, these reasons and bases were provided in the context of a SSOC readjudication of the issue of service connection for PTSD. The RO is invited to develop and adjudicate the issue of service connection for (non-PTSD) psychiatric disorders, which would now encompass other diagnosed psychiatric disorders, and includes the question of reopening service connection for major depressive disorder. With regard to the question of reopening service connection for major depressive disorder, in his March 1996 notice of disagreement with the denial of service connection for PTSD, the veteran did not express disagreement with the February 1996 rating decision denial of service connection for major depressive disorder; therefore, service connection for major depressive disorder became a final decision. The February 2006 Joint Motion's reporting of the record does not indicate an awareness of the fact that service connection for a major depressive disorder was previously denied in a February 1996 RO rating decision, which was issued on February 21, 1996, and to which the veteran did not enter a notice of disagreement within one year of notice of the decision on this issue. The June 2006 Board remand, likewise, without any reference to the February 1996 RO rating decision denial of service connection for major depressive disorder, referred the issue of service connection for major depressive disorder to the RO for appropriate development. The evidence to be considered on the question of reopening service connection for major depressive disorder includes an August 2003 VA examination report that shows a diagnosis of major depressive disorder (with psychotic features), and includes the VA examiner's opinion that the major depressive disorder likely began during service. An October 2007 VA examination report reflects diagnoses of schizoaffective disorder (depressed), anxiety disorder (not otherwise specified) with features of post-traumatic stress that did not constitute PTSD, and polysubstance dependence (in early remission), and includes the VA examiner's opinion that the depressive part of the mood disorder likely began during service, and that an anxiety disorder with post-traumatic stress disorder symptoms would also be related to time in service. This additional evidence since the February 1996 RO rating decision may well constitute new and material evidence to reopen that aspect of a claim for service connection for a psychiatric disorder that pertains to major depressive disorder, but this question of reopening will need to be adjudicated. Notwithstanding a previous referral, and references in a supplemental statement of the case to non-PTSD psychiatric disability, these questions still need to be developed and adjudicated by the RO. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); Roy v. Brown, 5 Vet. App. 554 (1993). For this reason, the Board is again referring to the RO the informal or inferred claim raised by the record of entitlement to service connection for a (non- PTSD) psychiatric disorder that has been variously diagnosed as schizoaffective disorder (depressed), anxiety disorder (not otherwise specified) with features of post-traumatic stress that did not constitute PTSD, and polysubstance dependence, including the question of whether new and material evidence has been received to reopen service connection for major depressive disorder. FINDING OF FACT The weight of the competent medical evidence demonstrates that the veteran does not have a diagnosed disability of PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (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 in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Collectively, VA notice and duty to assist letters dated in April 2002, May 2002, February 2003, April 2003, May 2003, April 2006, July 2006, September 2006, and February 2007 satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as they informed the appellant of what evidence was needed to establish the benefits sought (service connection for PTSD), of what VA would do or had done, and what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claims, and asked the appellant to send in any evidence in the appellant's possession that pertains to the claims. The Board is not aware of the existence of additional relevant evidence in connection with the appellant's claim that VA has not sought. In an April 2006 response, the veteran indicated in writing that he did not have anything else to submit to VA. VA medical records, VA examination reports, diagnoses, and medical opinions, private medical treatment records, diagnosis, and opinions, and other lay statements have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. In compliance with the Board's June 2006 remand, the RO requested private and VA treatment records, and obtained a VA examination and medical opinions (October 2007), then readjudicated the appellant's claim and issued a Supplemental Statement of the Case (December 2007). The Board finds that VA has substantially complied with the Board's June 2006 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). During the pendency of this appeal, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was provided such notice in a July 2006 letter. Because the claim for service connection for PTSD is being denied, and no initial rating or effective date will be assigned, the Board finds that there can be no possibility of any prejudice to the appellant under the holding in Dingess, supra. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements, and arguments presented by the representative organization. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The veteran contends that he has PTSD that is related to in- service stressful events of battle readiness training with fear of being sent into combat, fixing the mooring line of a ship, and learning of his friends' death after service. The veteran does not contend that he was involved in combat. The veteran's DD Form 214 (Report of Transfer or Discharge) and administrative records contains no reference to any combat citations or other awards or decorations denoting participation in combat with the enemy. The personnel records reflect that the veteran served stateside during his period of active duty as a clerk. Reports from a Vet Center that date between 1991 and 1998 show intermittent treatment for alcohol and chemical dependency. Private medical records show that the veteran was hospitalized from March 1991 to April 1991, and apparently received therapy for alcohol and chemical dependency. Private medical records dated in September 1994 from Valley View show treatment for cocaine abuse. An October 1995 VA examination report reflects the veteran's history of a dysfunctional early family life and alcohol and drug abuse; that the veteran served aboard a destroyer, the USS Albert David, which maneuvered in the Gulf of Tonkin from May to August 1971; and that the veteran had not been in combat situations or subjected to severe stress during service. The veteran reported that he was grieved to learn of the loss of several others who were killed when the ship was attacked after the veteran's discharge from service. The examiner diagnosed major depressive disorder, borderline personality disorder, and alcohol and multiple substance abuse. The examiner opined that the specific criteria necessary for a diagnosis of PTSD were not met. VA treatment records from January 1996 show that the veteran received psychiatric treatment, and that one professional reported that there were possible symptoms of PTSD. The impression was polysubstance abuse in four months of remission, anxiety disorder, and rule out PTSD. A Mental Health Discharge Summary from Christ Hospital shows treatment for substance abuse, schizoid personality, and chronic depression in June 1997. VA outpatient records dated between 2000 and 2003 show medical care was provided for paranoid type schizophrenia. A March 2001 social worker's letter invites the veteran into a program for "veterans who suffer with the PTSD diagnosis." The VA treatment entry cumulative list of diagnoses includes prolonged PTSD, which was diagnosed on April 4, 2001, but also includes alcoholism, tobacco use disorder, schizophrenia, and episodic use drug abuse. A June 2001 outpatient clinic record shows that the veteran's problem list includes prolonged post-traumatic stress. An August 2003 VA examination report reflects Axis I diagnoses of recurrent major depressive disorder with psychotic features; alcohol abuse; and post-traumatic stress syndrome. The VA examiner indicated that the veteran failed to meet complete criteria for a diagnosis of PTSD, as he lacked sufficient avoidance/numbing symptomatology, and had questionable stressors. The VA examiner indicated that the veteran's moderate-to-severe social and vocational or occupational impairment was attributable to the veteran's primary diagnosis of recurrent major depressive disorder. The VA examiner reasoned that the veteran's depression appears to be more distressing and disabling than his Post Traumatic Stress Syndrome and seems to temporally precede it, although there was some overlap of symptoms. Private treatment records from Ron Brown, Ph.D., dated from 2004 to 2007 reflect a reference to depression and PTSD, but show the treating Axis I diagnoses of bipolar psychosis and depression, and notes an Axis II diagnosis of borderline IQ/borderline personality disorder. A December 2004 private psychological examination report from H. Abraham Brietstein, Ph.D., reflects Axis I diagnoses of PTSD, social anxiety disorder, cocaine dependence (in sustained remission), and alcohol abuse. Dr. Brietstein noted that the veteran exaggerated his symptoms on the personality measure, and Axis II diagnosis was deferred. An April 2007 letter from George Brooks, D.O., notes the veteran has multiple severe physical problems, and has bipolar disease. Some VA treatment records reflect treatment for a diagnosis of various psychiatric disorders that include "PTSD syndrome." VA treatment entries in 2004 reflect a diagnosis of mixed bipolar disorder. A June 2006 VA treatment entry reflects the veteran was treated for relapse on alcohol, and that his mood and affect were situational and complicated by substance misuse. An October 2007 VA examination report shows that the veteran's symptoms did not meet the criteria for a diagnosis of PTSD. The diagnoses were schizoaffective disorder (depressed), anxiety disorder (not otherwise specified) with features of post-traumatic stress that did not constitute PTSD, and polysubstance dependence (in early remission). The VA examiner indicated that the veteran did not meet the full criteria for PTSD because his post-traumatic stress symptoms were fairly mild and fairly infrequent. After a review of all the evidence of record, the Board finds that there is some medical evidence that tends to show a diagnosis of PTSD, and medical evidence that tends to show that the veteran does not have a diagnosed disability of PTSD. Where, as in this veteran's case, there is a difference of medical opinion regarding diagnosis of the veteran's psychiatric symptoms, the Board must weigh the various medical diagnoses to determine whether the veteran has a medical diagnosis of PTSD. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases). The United States Court of Appeals for the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). After a review of all the evidence of record, the Board finds that the weight of the competent medical evidence, including VA PTSD examination reports and treatment records and private treatment records and letters, shows that the veteran does not have a diagnosed psychiatric disability of PTSD. The Board finds that the August 2003 and October 2007 VA PTSD examination reports are of more probative value because the October 2007 examination was conducted by a psychiatrist (M.D.); these examinations are based on a thorough history and complaints, including a thorough review of previous findings and diagnoses, included mental status examination findings; these examination reports offered specific DSM-IV diagnoses to account for the veteran's psychiatric symptoms, and specifically indicated which PTSD criteria was not met; included an Axis II diagnosis; and these diagnoses are more consistent with the majority of VA and private treatment records and diagnoses. The December 2004 private psychological examination report reflecting diagnoses that included PTSD was conducted by a private psychologist (Ph.D.); was based only on a history provided by the veteran, who Dr. Brietstein noted was prone to exaggeration of symptoms, without benefit of review of previous treatment records or diagnoses; the diagnosis of PTSD was only one of four Axis I diagnoses that were indicated to account for the veteran's symptoms; the report did not indicate which specific PTSD criteria were met to form the basis for the diagnosis; did not include an Axis II diagnosis; and is less consistent with the other diagnoses of record such as bipolar psychosis, depression, schizophrenia, personality disorder, anxiety disorder, and even post- traumatic stress symptoms or syndrome. Likewise, the other references in the medical records to PTSD do not indicate that this is a DSM-IV diagnosis or qualify the diagnosis as PTSD syndrome (not diagnosis); and do not provide an explanation of the bases of the diagnosis, including which specific PTSD criteria were met. Because the weight of the competent medical evidence demonstrates that the psychiatric symptomatology has not manifested in a diagnosis of PTSD, there is no basis to grant service connection for PTSD. The Court has held that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Because the basis of denial of the veteran's claim for service connection for PTSD is that the weight of the competent evidence demonstrates no diagnosis of PTSD, the Board does not reach the additional questions of adequacy of claimed in-service stressful events or the question of relationship of PTSD to such in-service stressful events. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim for service connection for PTSD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs