Citation Nr: 0814974 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-23 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from August 1947 to June 1953 and from August 1954 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case was previously before the Board in June 2007, when it was remanded for examination of the veteran and a medical opinion. The requested development has been completed. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The veteran's major depressive disorder and panic disorder were not manifest in service and are unrelated to service. 2. The veteran does not have PTSD. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, including PTSD, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist VA is required to notify the veteran and his or her representative, if any, of (1) the information and evidence that is necessary to substantiate the claim; (2) what evidence the veteran is responsible for providing; (3) what evidence VA will attempt to obtain; and (4) the need to submit any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2007); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied through July 2003, October 2005, and March 2006 letters to the veteran that addressed all four notice elements. The October 2005 letter advised the veteran what the evidence must show to establish entitlement and the March 2006 notified the veteran of effective dates and degree of disability per Dingess v. Nicholson, 19 Vet. App. 473 (2006). The July 2003 letter first furnished all the other necessary notice. The letters informed the veteran of the evidence required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the AOJ. The veteran did not receive all necessary notice prior to the initial adjudication. However, the lack of such a pre- decision notice is not prejudicial. Notice was provided prior to the last RO adjudication in October 2007. Additionally, the timing of the notice required by Dingess concerning effective date and degree of disability was not prejudicial, as the claim has been denied thus rendering moot any issues with respect to implementing an award. VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In this case, VA obtained service medical records, service personnel records, VA treatment records, lay statements from the veteran, and VA examination reports from May 2005 and September 2007. VA has satisfied its assistance duties. Service connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in- service stressors as set forth below: (1) 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). The veteran argues that service connection is warranted for PTSD, as W.K., M.D. has diagnosed PTSD and his Combat Action Ribbon shows he had combat service. The veteran was in fact awarded the Combat Action Ribbon. He was onboard the U.S.S. BENNER between December 1966 and March 1967, and during that time, the ship fired at small logistical craft and an antiaircraft battery in the Gulf of Tonkin and bombarded the North Vietnam coast. On the last occasion, there were two counter-battery actions where 116 enemy rounds were received close aboard. Based on this information, the veteran's personal exposure to combat events has been sufficiently corroborated. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App.307 (1997). His statements concerning combat are accepted. 38 U.S.C.A. § 1154(b) (West 2002). Service medical records do not show any treatment for or diagnosis of psychiatric disorder. Anxiety disorder was reported on VA evaluation in October 2003. Recurrent depression and mild PTSD were reported in November 2003. At that time, the veteran estimated that he had had 6 episodes of recurring depressive episodes since he retired from the military in 1968. He denied combat related nightmares. On VA evaluation in December 2003, major depressive disorder and PTSD were diagnosed. Axis IV was history of combat exposure. (An Axis IV assessment listing a military experience represents an "etiologically significant psychosocial stressor" that may indicate a plausible connection between the current condition and service. See Hernandez-Toyens v. West, 11 Vet. App. 379, 381-82 (1998). In July 2004, a VA psychiatrist, W. K., M.D. indicated that the veteran had some symptoms of PTSD, but did not meet the criteria for a diagnosis of PTSD. His diagnosis was depression then and in August 2004. He reiterated the above information from July 2004 and August 2004 in September 2004. In November 2004, his diagnoses were depression, panic disorder, and PTSD, and in April 2005, they were panic disorder and PTSD. A VA psychiatric examination was conducted in May 2005. The examiner reviewed the veteran's history from service to the present and reviewed the claims folder. The veteran told the examiner that he had been a radioman in service. During combat on his destroyer off the coast of Vietnam, he had felt helpless cooped up in the radio shack and not being able to have full knowledge of what was going on outside the destroyer. He told the examiner that he did not really avoid things that reminded him of Vietnam. He indicated that he had experienced sleep apnea and panic attacks. After a mental status examination, the examiner's impression was anxiety disorder. Axis IV listed combat experiences. The examiner indicated that the veteran did not meet the criterion for PTSD. On criteria B, he did not report mild reactivity to events reminding him of Vietnam. On criterion C, he denied avoidance. On VA evaluations in July 2005, October 2005, March 2006, and May 2007, panic disorder and PTSD were diagnosed. The March 2006 diagnosis and some of the other diagnoses of PTSD are from Dr. W.K. A VA psychiatric examination was conducted in September 2007. The examiner reviewed the veteran's claims folder. The veteran stated that he did not have any memories of nightmares when he wakes up at night. The veteran described periods of anxiety which were rather confusing in terms of whether he met criteria for classic panic attacks. He stated that he did not remember nightmares but instead was just jarred awake. After examining the veteran, the examiner indicated that the veteran does not meet the criteria for PTSD. As for criteria A, he did not describe experiences of intense fear, helplessness, or horror. On criterion B, he denied knowledge of nightmare or intrusive thoughts. He did not meet criteria C either. The examiner indicated that the veteran did report symptoms consistent with the diagnosis of major depressive disorder, and that he also meets the criteria for a diagnosis of panic disorder. However, neither major depressive disorder nor panic disorder was related to service, the examiner stated. He indicated that there was no nexus between the veteran's psychological disorders and the veteran's military service. He had reviewed the veteran's service medical records. The evidence indicates that the veteran has been diagnosed as having an anxiety disorder, major depressive disorder, and panic disorder. However, psychiatric symptomatology or diagnosis is not shown in service, and there is no competent medical evidence relating any acquired psychiatric disorder to service. To the contrary, the VA examiner in September 2007 indicated that there was no relationship between the veteran's psychological disorders and his military experience. This is deemed more probative than the listing of Vietnam combat experiences as a psychosocial stressor in Axis IV noted in various records. All that indicated was that there "may" be a connection between the two, whereas the September 2007 report specifically ruled out a causal connection. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.); Hernandez-Toyens v. West, 11 Vet. App. 379, 381-82 (1998). The preponderance of the evidence indicates that the veteran does not have PTSD. The outpatient records that include diagnoses of PTSD did not indicate that the diagnosis was in accordance with DSM-IV. Further, one of the health care providers who diagnosed PTSD, Dr. W.K., also indicated that the veteran did not meet the criteria for a diagnosis of PTSD. Moreover, both the 2005 and the 2007 examiners, who specifically considered the criteria from DSM-IV, indicated that the veteran does not meet the criteria for a diagnosis of PTSD under DSM-IV, and they indicated what criteria he did not meet. Since their diagnoses considered DSM-IV and are in greater detail than the ones that report PTSD, and since they also considered information from the veteran's claims folder in their examinations, their opinions are considered more probative. Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion- writer's access to relevant records). Since the evidence indicates that the veteran has major depression and panic disorder which are not related to service, and that the veteran does not have PTSD, service connection is not warranted for an acquired psychiatric disorder, to include PTSD. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs