Citation Nr: 1000950 Decision Date: 01/07/10 Archive Date: 01/15/10 DOCKET NO. 07-31 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and adjustment disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from May 1986 to March 1990 (Marine Corps), from February 2003 to July 2003 and from October 2004 to June 2005 (Army). The Veteran also served four years in the Army Reserves. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for a heart disorder and psychiatric disorders (PTSD and other nervous conditions). The Veteran testified during a hearing at the RO before a Decision Review Officer (DRO) in April 2007. A transcript of that hearing is of record. The April 2006 rating decision styled the issue as service connection for PTSD to include additional nervous conditions/disorders. By so doing, and by addressing whether service connection was warranted for any non-PTSD psychiatric disorders, the RO has adjudicated the larger issue of service connection for a psychiatric disorder, regardless of diagnosis. The issue encompasses PTSD, any other anxiety disorder, and the Veteran's diagnoses of major depressive disorder and adjustment disorder. The Board has slightly recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and adjustment disorder to reflect the broad nature of the service connection claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. The Veteran is not shown to have a heart disability, including as a result of events during military service. 3. The Veteran is shown to have an acquired psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood as a result of events during military service. CONCLUSIONS OF LAW 1. A heart disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2009). 2. Resolving reasonable doubt in the Veteran's favor, an acquired psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.125 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claims. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 38 C.F.R. § 3.159 (b)(3) (2009). In this case, the Veteran's claims for service connection for a heart disorder and psychiatric condition, including PTSD (and now major depressive disorder), was received in July 2005. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in September 2005. This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding VCAA. Thereafter, the claims were reviewed and a supplemental statement of the case (SSOC) was issued in November 2008. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in March 2006. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service personnel records, service treatment records, and all relevant VA treatment records pertaining to his claimed disabilities have been obtained and associated with his claims file. The Veteran has also been afforded VA examinations in September 2005 and June 2007 to determine the nature and etiology of his psychiatric disorder. The Veteran did not show for his October 2005 VA general medical examination to determine the nature and etiology of his claimed heart disorder. The duty to assist is not a one- way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon a veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a). By his failure to report for scheduled examinations, the Veteran has not satisfied his responsibilities in the development of his claim. In light of the foregoing, the Board finds that VA has developed all relevant facts to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the duty to assist. Controlling law provides that when a claimant fails to report for an examination scheduled in conjunction with a claim for an original compensation claim, the claim shall be rated on the evidence of record. See 38 C.F.R. § 3.655 (2009). Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and a psychosis, although not otherwise established as incurred in or aggravated by service, is manifested to a compensable degree within one year following the requisite service. See 38 C.F.R. §§ 3.307, 3.309 (2009). 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 in-service stressor; and credible supporting evidence that the in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009). The first requirement for service connection for PTSD is a medical diagnosis of the condition. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM) (2009). An amendment to 38 C.F.R. § 3.304(f), effective May 7, 2002, which pertains to evidence necessary to establish a stressor based on personal assault, does not change the three criteria noted above. See 67 Fed. Reg. 10330-10332 (March 7, 2002). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2009). Service Connection for a Heart Disorder The Veteran claimed service connection for a heart condition, which he wrote on his claim form began in January 2005. Service treatment records include a single instance of complaints of a heart condition. In a January 2005 Landstuhl Regional Medical Center treatment record, the Veteran was noted to have been diagnosed with atypical chest pain. In a February 2005 physical examination report, the Veteran stated that in January 2005 he had an episode of chest pain that led to hospital admission with normal results. In a March 2005 service treatment record, an examination of the cardiovascular system was negative for chest pain, palpations, heart murmur, and dyspnea on exertion. In a post-service July 2005 VA progress note, the VA examiner found the heart had a regular rate and rhythm, no murmur or gallop, and peripheral pulses were equal bilaterally. A chest x-ray report dated in July 2005 found the heart and mediastinal contours within normal limits, with negative appreciable change compared to 1998. A July 2006 private hospitalization note reflects that the Veteran denied chest pain or palpations, and, upon examination, the examiner found no murmurs, rubs or gallops, with regular rhythm and rate. In August and November 2006 private treatment records, the examiner noted regular rate and rhythm heard. At the April 2007 DRO hearing, the Veteran stated he was not informed that he had a diagnosis of a heart disorder, and that he did not have high blood pressure. In the present case, the Board finds that the weight of the competent evidence shows that the Veteran's current chronic heart disorder is not related to service. The Veteran's service treatment records show an indication of atypical chest pain on single occasion in January 2005; however, the Veteran himself stated that the findings were normal and he returned to Iraq. Subsequent examinations found no heart abnormalities, and in the July 2006 private hospitalization note, the Veteran denied chest pains. The weight of the evidence thus indicates that the treatment for the possible chest pain in service was not chronic in service, and that the symptoms resolved without any chronic symptoms of disability. Based upon the evidence of record, the Board finds that the Veteran is not shown to have a current heart disability, including a chronic heart disability as a result of an established event, injury, or disease during active service. 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. Hence, in the absence of proof of a present diagnosis of heart disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 143- 144 (1992). The Board also has considered the assertions the Veteran has advanced on appeal in multiple written statements. While the Veteran is competent to report symptoms that he experiences at any time, he is not competent to diagnose a heart disability or to offer an opinion that any current diagnosed heart disability is associated with military service. Questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson without the appropriate medical training or expertise, the Veteran simply is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. 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 layperson is generally not capable of opining on matters requiring medical knowledge"). For the foregoing reasons, the Board finds that the claim for service connection for a heart disorder must be denied. 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. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Service Connection for a Psychiatric Disorder In his claim form, the Veteran listed depression, anxiety disorder, PTSD, and panic attacks as the symptoms or disabilities for which he was claiming service connection. In his notice of disagreement, the Veteran that he experienced specific in-service stressful events. Service treatment records for the period of service from October 2004 to June 2005 are significant for psychiatric treatment. Service treatment records reflect that at a February 2005 psychological assessment the Veteran complained of being depressed and anxious. Upon examination, the Veteran was diagnosed with psychosis NOS, rule out brief psychotic disorder, and rule out major depressive disorder with psychotic features. The service examiner listed stressors including occupational, military, and family. In a February 2005 report of mental status evaluation, the Veteran was diagnosed with adjustment disorder with mixed anxiety and depression, which was noted to represent an adjustment disorder which existed prior to entry into active service and was not reported. In a March 2005 service report titled Narrative Summary and Patient Discharge Instructions, the Veteran's diagnosis was listed as adjustment disorder with mix anxiety and depression. Service treatment records including an aeromedical evaluation patient record and Womack Army Medical Center record also dated in March 2005 confirm the diagnosis of adjustment disorder with mixed anxiety and depression. In a subsequent March 2005 service treatment record, the Veteran continued to complain of anxiety and depression and was noted to be pending administrative separation. In a July 2005 VA progress note, the examiner noted that as a preliminary, his working diagnosis was major depressive episode with psychosis currently in partial remission. The examiner reported that the elements of PTSD remained unclear, and there were certainly criteria for an adjustment disorder given the sequence of events. In a July 2005 VA therapy note, the examiner diagnosed major depression, initially with psychotic features (currently absent). In a September 2005 VA examination report, the examiner diagnosed adjustment disorder with mixed anxiety and depressed mood, a secondary diagnosis of antisocial personality disorder, and noted stressors including unemployment and recent discharge from service. The examiner opined that based on a review of treatment notes and the Veteran's report, he does not meet diagnostic criteria for major depressive disorder, an anxiety disorder, or panic disorder. He stated that he does not meet diagnostic criteria for PTSD, and that while he was given a diagnosis of adjustment disorder with mixed anxiety and depressed mood (due to some difficulties in adjusting to his return to the United States and discharge from the service) the majority of his problem appear to stem from a longstanding characterological disorder and predate military service. The examiner noted that the Veteran gave clear evidence of a childhood conduct disorder, as well as multiple indicators of adult antisocial personality disorder. Additional, the examiner indicated that much of the Veteran's clinical presentation during his interview seemed contrived and forced, and was not consisted with his past clinical presentations. In a November 2005 VA progress note, the physician reported that the Veteran was treated for major depression, initially with psychotic features when he presented in the military, and that he was doing well with maintenance treatment. In a December 2005 VA progress note, the examiner continued to diagnose major depression with psychotic features, relapsing. In a February 2006 VA progress note, the diagnosis was major depression with psychotic features, with onset in military. In a June 2007 VA examination report, the examiner diagnosed major depressive disorder, recurrent, mild, and not secondary to military experiences. The examiner noted that the Veteran did not meet the diagnostic criteria for PTSD, and has never met the criteria for that disorder. The examiner further opined that the Veteran has major depression which was not secondary to nor was it exacerbated by his military experiences, and that instead he has significant characterological pathology, most notably antisocial personality disorder, which began in childhood and has remained present as an adult. In view of the totality of the evidence, including the Veteran's documented in-service diagnosis of a psychiatric disability, his current complaints and treatment of depression since service, the opinion of the February 2006 VA physician that the disability had its onset in military service, and, most importantly, the Veteran's March 2005 line of duty determination as to the incurrence of a psychiatric disability in service, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran's acquired psychiatric disability (adjustment disorder with mixed anxiety and depressed mood) developed as a result of his active service. Although the opinions of the September 2005 and June 2007 VA examiners were that the Veteran's disability pre-dated military service, these opinions do not outweigh the line of duty determination. The Board notes that 38 C.F.R. § 3.301(m) specifically states, "A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs." Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a heart disorder is denied. Service connection for a psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs