Citation Nr: 1003397 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 04-38 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a personality disorder. 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, not otherwise specified (NOS), major depressive disorder, depressive disorder, not elsewhere classified (NES) and affective disorder. ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2006, the Board remanded the Veteran's claim for further evidentiary development. Such development has been undertaken to the extent possible. 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). The Veteran initially filed a claim for depressed mood disorder. The United States Court of Appeals for Veterans Claims (the Court) indicated that VA unduly limited its consideration of claims for service connection for specific mental disorders under circumstances in which other diagnosed psychiatric disabilities may be present. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) [holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled]. In light of Clemons, and in view of the fact that the Veteran has received multiple and varying psychiatric diagnoses, the Board has recharacterized the Veteran's claim for service connection for depressed mood disorder and expanded the issue to include any acquired psychiatric disability. The issue is as stated on the title page. FINDINGS OF FACT 1. The competent medical evidence of record does not show that the Veteran is currently diagnosed with PTSD. 2. The competent medical evidence of record does not show that the Veteran is currently diagnosed with a personality disorder. 3. The Veteran's currently diagnosed acquired psychiatric disorder other than PTSD, to include anxiety disorder, NOS, major depressive disorder, depressive disorder, NES and affective disorder, is causally related to service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2009). 2. A personality disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 3. An acquired psychiatric disorder other than PTSD, to include anxiety disorder, NOS, major depressive disorder, depressive disorder, NES and affective disorder, was incurred in active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Merits of the Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic as opposed to merely acute and transitory in nature. For the showing of a 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence, 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 an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 1. Entitlement to service connection for PTSD With respect to Hickson element (1), the competent medical evidence does not reflect a current diagnosis of PTSD. To the contrary, the August 2003 and August 2009 VA examiners specifically noted that the Veteran's symptoms do not meet the full criteria of PTSD under the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM- IV)). As noted above, service connection presupposes a diagnosis of a current disability. See Degmetich, Brammer and Rabideau, all supra. Specifically, the August 2003 VA examiner noted that the Veteran had "some symptoms of PTSD", but he was primarily disabled due to antisocial features and a history of alcohol abuse and dependence. The August 2003 VA examiner provided a diagnosis of depressive disorder, NOS. Similarly, following an interview and review of the Veteran's records, the August 2009 VA examiner concluded that the Veteran did not have a current diagnosis of PTSD. The examiner recognized that the Veteran "very likely" had met the full criteria for PTSD in the years following his service, but that his symptoms had attenuated, and thus, such symptoms no longer rose to a level that warrants the assignment of a DSM-IV PTSD diagnosis. The Veteran is not competent to disagree with this medical conclusion and there are no other evaluations of record. Without medical evidence of the current existence of PTSD, there may be no service connection. See Degmetich, Brammer and Rabideau, all supra. Accordingly, a review of the evidence presented indicates no competent current medical diagnosis of PTSD. The claim relies on the Veteran's own self-diagnosis. It is, however, now well-established that lay persons without medical training, such as the Veteran, are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-495 (1992) [lay persons without medical training are not competent to comment on medical matters such as diagnosis and etiology]; see also 38 C.F.R. § 3.159(a)(1) (2009) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Thus, the Veteran's statements, offered in support of his claim, are not competent medical evidence and do not serve to establish a current diagnosis of PTSD. The Veteran has been accorded ample opportunity to present competent medical evidence which includes a diagnosis of PTSD. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. The Board observes that medical records dated June 1999 suggest a diagnosis of PTSD. However, no diagnosis of a PTSD is demonstrated in the Veteran's subsequent medical history. The Board recognizes the Court's decision in McClain v. Nicholson, 21 Vet. App. 319 (2007) [holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection where the record otherwise supports it, even where the most recent diagnosis is negative]. However, in this case there is no current diagnosis of PTSD, and the claimed disability has not been noted at any time during the pendency of this claim, which dated to February 2003. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for PTSD. Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) 2. Entitlement to service connection for a personality disorder The Veteran has claimed entitlement to service connection for a personality disorder. However, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for the claimed disability, because the Veteran has not been shown to have been diagnosed with a personality disorder. As discussed above, a service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer, Rabideau and Degmetich, all supra. The Veteran's lay opinion related to diagnosis or etiology is insufficient to establish service connection. See Espiritu, supra. The Board acknowledges that records from the Veteran's personnel file reflect that the Veteran was discharged "under honorable conditions" before his six-month tour of duty in the Republic of Vietnam had been completed due to a "personality disorder". However, while the Veteran's personnel records list a "personality disorder" as the reason for his discharge, the review of the Veteran's service treatment records, VA treatment records and private treatment records yields no diagnosis of a personality disorder. The Veteran has been accorded ample opportunity to present competent medical evidence which includes a diagnosis of a personality disorder. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. As the medical evidence does not establish that the Veteran has a current diagnosis of a personality disorder, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a personality disorder is not warranted. 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, NOS, major depressive disorder, depressive disorder, NES and affective disorder With respect to Hickson element (1), medical evidence of a current disability, the competent medical evidence of record reflects that the Veteran has been variously diagnosed with anxiety disorder, NOS, major depressive disorder, depressive disorder, NES and affective disorder. See e.g., the Veteran's VA outpatient treatment records from the St. Louis, Missouri VA Medical Center (VAMC), an April 2003 psychological evaluation from K.P., Ph.D. and August 2003 and August 2009 VA examination reports. Further, the Board notes that the Veteran has been in receipt of disability benefits from the SSA due to "affective disorders". Accordingly, Hickson element (1), medical evidence of a current disability, has been demonstrated. With respect to Hickson element (2), medical evidence of in- service occurrence or aggravation of a disease or injury, records from the Veteran's personnel file reflect that the Veteran was discharged "under honorable conditions" before his six-month tour of duty in the Republic of Vietnam had been completed due to a "personality disorder" after an incident in which he "punched" a non-commanding officer. Indeed his service treatment records reflect that he complained of and received treatment for nervousness, anxiety and nightmares. See a service treatment record dated July 1966. Further, the Veteran indicated that he experienced "nervous trouble" on a December 1965 examination report. In light of above, Hickson element (2), medical evidence of in-service occurrence or aggravation of a disease or injury, has been satisfied. Concerning crucial Hickson element (3), medical evidence of a nexus between an in-service injury or disease and the current disability, the only medical nexus opinion of record is favorable to the Veteran's claim. In August 2009, the Veteran presented for a VA mental examination, the report of which notes that the Veteran's entire claims file was available and reviewed. The VA examiner noted that the Veteran suffered from nightmares "every night", anxiety and frequent intrusive violent thoughts. After completing the examination, the August 2009 VA examiner opined "It is at least as likely as not that [the Veteran's] experiences in the service in Vietnam were the cause of his [PTSD], and as his symptoms have become attenuated, he no longer meets the full criteria for PTSD. However, he continues to have clinically significant anxiety, nightmares and violent thoughts, which are best accounted for by a diagnosis of anxiety disorder, [NOS]." See the August 2009 VA examination. The August 2009 VA examiner's nexus opinion appears to be consistent with the Veteran's medical history. Further, the August 2009 VA examination report appears to have been based on thorough review of the record, a comprehensive examination of the Veteran, and thoughtful analysis of the Veteran's entire history and current medical conditions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [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"]. In sum, the medical nexus opinion of the August 2009 VA examiner appears to support the Veteran's assertions that the symptoms associated with his diagnosed acquired psychiatric disorder (anxiety disorder, NOS) are causally related to his service. There are no medical nexus opinions to the contrary. Therefore, the Veteran's claim for service connection is granted, subject to the controlling laws and regulations, which govern awards of VA compensation. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2009); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). II. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for PTSD, a personality disorder and an acquired psychiatric disorder. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009). The Court held that VA must inform 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; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the Veteran's claims, a letter dated in March 2003 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Subsequent letters dated in November 2004 and August 2006 also satisfied the duty to notify provisions. The August 2006 letter as well as a letter dated in July 2009 provided notice of degree of disability and effective date criteria as required under Dingess. Although these letters were not sent prior to initial adjudication of the Veteran's claims, this was not prejudicial to him, since he was subsequently provided adequate notice in August 2006, he was provided more than three years to respond with additional argument and evidence and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the Veteran in September 2009. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, service personnel records, VA medical records, and SSA medical records and resulting decisions are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The Board additionally notes that the RO and the VA Appeals Management Center (AMC) made several attempts to verify the Veteran's multiple claimed stressors. In this regard, in December 2008, the AMC submitted a request for morning reports of the Veteran's unit to the Personnel Information Exchange System (PIES); the response from PIES indicated that such records were not stored there. In March 2009, the AMC requested the same information from National Archives and Records Administration (NARA), whose April 2009 response indicated that such records were stored at the U.S. Army Joint Services Records Research Center (JSRRC). In June 2009, the AMC submitted the Veteran's claimed stressors to the JSRRC for verification. In a June 2009 response, the JSRRC stated that they had determined that the information concerning the stressors supplied by the Veteran, was insufficient to allow for meaningful research of records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran presented for VA examinations in August 2003 and August 2009. Concerning the August 2003 and August 2009 VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report of these examinations reflects that the examiners reviewed the Veteran's complete claims file, to include his service medical records, past medical history, recorded his current complaints, and conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examination is adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). The Veteran and his representative have not contended otherwise. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Sanders v. Nicholson, 487 F.3d 881 (2007). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for a personality disorder is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, NOS, major depressive disorder, depressive disorder, NES and affective disorder, is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs