Citation Nr: 1007195 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-21 577 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychiatric disability other than PTSD. ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1980, and from December 1980 to December 1983. This appeal to the Board of Veterans' Appeals (Board) arises from a May 2007 rating decision in which the RO denied service connection for PTSD. In July 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2008. While, as indicated above, the RO has only adjudicated claim for service connection for PTSD, for reasons explained below, the Board has now characterized the appeal as encompassing the two matters set forth on the title page. The Board's decision on the claim for service connection for PTSD is set forth below. The matter of service connection for psychiatric disability other than PTSD is addressed in the remand following the order; this matter is being remanded to the RO via the AMC, in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the record includes a diagnosis of PTSD, the weight of the competent, probative evidence establishes that the Veteran does not meet the diagnostic criteria for PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a July 2006 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The May 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the July 2006 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service and private treatment records, and the reports of March 2007 and April 2007 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran. The Board also finds that no additional RO action to further develop the record in connection with the claim for PTSD is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis 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. 38 C.F.R. § 3.304(f). 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 the 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-IV) (2009). Considering the claim for service connection in light of the above, because the preponderance of the evidence establishes that the Veteran does not meet the diagnostic criteria for PTSD, the claim must be denied. In this case, the service treatment records are negative for any signs, symptoms, or diagnoses of PTSD. The Veteran noted on his October 1983 Report of Medical History that he did not experience nervous trouble of any sort, and the separation examiner indicated in October 1983 that the Veteran was psychiatrically normal. In a June 2006 letter, E.W.H., M.D., wrote that the Veteran had a diagnosis of chronic PTSD. He recounted the Veteran's report of fighting with another soldier and falling down a flight of stairs in 1983. He also recorded the Veteran's experience of participating in a criminal line-up. He noted the Veteran's nightmares, flashbacks, panic attacks, intrusive thoughts, and hypervigilance. Dr. H. stated that the Veteran was moderately compromised by his PTSD, which Dr. H. felt was related to service. Additional outpatient records from Dr. H. from June 2006 through November 2007 reveal ongoing outpatient treatment for PTSD. On VA examination in March 2007, the Veteran complained of difficulties since 1983. He said he was anxious, depressed, had trouble sleeping, and could not keep a job. He reported nightmares, flashbacks, and intrusive thoughts. He stated that he had previously attempted suicide a few times. The Veteran reported being in a fight and falling down a flight of stairs while on active duty. The examiner found the Veteran to be alert, cooperative, and polite. There were no loosened associations or flight of ideas. There were no bizarre motor movements or tics. There was no impairment of thought processes or communication. The examiner deferred making a DSM-IV diagnosis; he said that because of the Veteran's presentation of his symptoms, psychological testing would be necessary to help ascertain the true nature and extent of the Veteran's condition. This testing was performed in April 2007. The examiner reviewed Dr. H.'s diagnosis of PTSD. It was noted that the Veteran participated in several hours of testing. The Veteran expressed that he was miserable and unable to function normally. His recent memory appeared intact, and remote memory appeared more variable. He demonstrated poor short-term memory, fair verbal abstract reasoning, and questionable judgment. He reported auditory hallucinations. The examiner said that the Veteran's responses on validity scales indicated that he was able to attend to, understand, and respond in a consistent, non-random manner to item content. However, the Veteran produced an extremely elevated score on the validity scale that assesses the degree to which an examinee endorses extremely bizarre and unlikely symptoms. The examiner said that from the testing results, it appeared that the Veteran was attempting to portray himself in an especially negative manner. The examiner observed a similar pattern of responding on other validity scales, as there was considerable evidence of over-endorsement of highly unusual and even bizarre items. The examiner said that records suggested that the Veteran sustained a fall and some degree of head injury during his active service, but based on medical notes from the time of the fall, and based on the Veteran's description of the event, it appeared highly doubtful that the event constituted a psychological trauma. The examiner continued by saying that even in the unlikely event that the claimed stressor constituted a traumatic event, it was very doubtful that PTSD developed subsequently. The examiner said that based on current testing and interview data, the Veteran was prone to over-endorse, exaggerate, and/or falsify his reports regarding previous and current functioning, as shown by two standardized tests which specifically assess the degree of symptom over-endorsement. The examiner also noted inconsistencies between the current evaluation and a prior evaluation. It was noted that the Veteran had a tendency to list and repeat symptoms which seemed to reflect a desire to be exhaustive in his description of his condition. The examiner concluded that a diagnosis of PTSD did not appear warranted. Thus, the record contains conflicting medical opinions on the question of whether the Veteran actually meets the diagnostic criteria for PTSD. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that in Dr. H.'s June 2006 letter and outpatient records, where PTSD is mentioned, no rationale has been provided to support that diagnosis. Dr. H. recounts the Veteran's report of his own history, but he gives no rationale for why a diagnosis of PTSD is warranted. As no rationale has been provided, the Board has given these reports no probative weight. See Nieves-Rodriguez, 22 Vet. App. at 300-01. The Board further notes that none of these outpatient records include any comments addressing the DSM-IV criteria. By contrast, the Board observes that neither the March nor April 2007 VA examiners diagnosed PTSD, In particular, the April 2007 VA examiner-a psychologist- performed a battery of psychological tests. In his report, he discussed the Veteran's alleged stressors and commented upon specific events from the Veteran's history. He specifically referenced the psychological tests he employed throughout the examination report. His opinion that the Veteran did not meet the criteria for PTSD opinion was rendered following review of the relevant records as well as examination of the Veteran, and was supported by clearly stated rationale. Thus, the Board finds that this opinion is entitled to great probative weight, and supports the conclusion that the most probative evidence on the question of whether the Veteran, in fact, meets the diagnostic criteria for PTSD, weighs against the claim. In addition to the medical evidence, in adjudicating this claim, the Board has considered the Veteran's own assertions ; however, this evidence provides no basis for allowance of the claim. As indicated, this claim, fundamentally, turns on the matter of whether the Veteran has the disability for which service connection is sought, and matters of diagnosis and etiology are within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson not have appropriate psychiatric training and expertise, the Veteran is simply not competent to render a probative (persuasive) opinion on the matter upon which this claim turns. See, e.g., 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"). Hence, the lay assertions in this regard have no probative value. As the preponderance of the competent, probative evidence establishes that the first, essential criterion for service connection for PTSD-medical diagnosis of the disorder in accordance with the diagnostic criteria for the disorder-is not t met, service connection for PTSD cannot be established; hence, the Board need not address the remaining criteria for service connection for PTSD. See 38 C.F.R. § 3.304(f). 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, under these circumstances, 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). ORDER Service connection for PTSD is denied. REMAND In light of the current record and recent United States Court of Appeals for Veterans Claims (Court) precedent, the Board finds that further RO action on this matter is warranted. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the Board erred in not considering the scope of a Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, psychiatric diagnoses of record and other information. In this case, although the RO only adjudicated a claim for service connection for PTSD (which, ad indicated above, has been denied on the basis of current disability) , the record includes other psychiatric diagnoses of record other than PTSD, to include depression, in addition to various possible personality disorders.. Thus, consistent with Clemons, the record also raises the matter of the Veteran's entitlement to service connection for psychiatric disability other than PTSD. To avoid any prejudice to the Veteran, a remand for RO consideration of this matter, in the first instance, is warranted. Prior to adjudicating the claim, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide any additional information and/or evidence pertinent to the claim remaining on appeal, explaining to him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the required notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA (to include arranging for examination of the Veteran, if warranted) prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the matter of service connection claim on appeal that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should obtain all identified outstanding records of psychiatric evaluation and/or treatment not currently of record, following the current procedures set forth in 38 C.F.R. § 3.159 (2009). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted (to include arranging for examination of the Veteran, if appropriate), the RO should adjudicate the claim for service connection for psychiatric disability other than PTSD in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal is denied, the RO must furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs