Citation Nr: 1010769 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 08-08 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This appeal was previously before the Board in June 2009. The Board remanded the claim so that the Veteran could be scheduled for a VA examination and to request additional medical information from the Veteran. The case has been returned to the Board for further appellate consideration FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. The Veteran failed to report for scheduled VA examinations in conjunction with his claim and good cause for his failure to report has not been shown. 3. The available evidence of record showed corroborated that the Veteran's claimed in-service stressful experience; however, the record does not show a diagnosis of PTSD, and psychiatric conditions noted in the treatment records are not noted to be related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) 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. In this case, the Veteran filed his service connection claim in April 2006. Thereafter, he was notified of the provisions of the VCAA by correspondence dated in May 2006, October 2006, and in June 2009. The letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a supplemental statement of the case (SOC) was issued in August 2009. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) found that the VCAA notice requirements applied to all elements of a claim. Additional notice as to these matters was provided in the May 2006 and June 2009 letters. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained 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 claim file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. The Veteran's service treatment records and VA treatment records were obtained and associated with his claims file. He was also scheduled for a VA examination in August 2009. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q) (2009). Here, the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. There has been substantial compliance with all pertinent VA law and regulations and to move forward with these claims would not cause any prejudice to the appellant. 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. § 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 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, direct 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). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection my nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2009); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 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) (2009). If the Veteran did not engage in combat with the enemy, his own testimony by itself is not sufficient to establish the incurrence of a stressor; rather, there must be service records or other credible supporting evidence to corroborate his testimony. See Zarycki v. Brown, 6 Vet. App. 91 (1993); Doran v. Brown, 6 Vet. App. 283 (1994). The first requirement for service connection for a mental disorder is a medical diagnosis of the condition. Diagnoses 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) (2007). 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). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD includes claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2009). The Court has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). The Court has also held that VA's "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a Veteran wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Factual Background The Veteran filed a claim for service connection for PTSD in April 2006. In February 2008, he submitted a stressor statement where he described being part of a rescue team for a bomb navigator (BN) who had been partially ejected from an aircraft midflight. He noted that the BN broke threw the canopy of the aircraft in flight, and that the aircraft landed with the BN still partially protruding from the canopy. The Veteran was the rescue team member who actually pulled the BN out of the aircraft and helped to carry him away from the flight deck. Service treatment records are negative for complaints of, treatment for, or diagnosis of any acquired psychiatric disorder. A January 1992 record noted that the Veteran injured his hand in a fight in Oakland. Other service treatment records showed the Veteran was stabbed at age 16 in an altercation on his way to class. In July 1992, he underwent a psychiatric examination after he was late for muster onboard ship, and alcohol was noted on his breath. He related having started drinking alcohol at age 16, with increased drinking after joining the Navy. Following the mental status examination, the assessment was: history consistent with episodic alcohol abuse. In a May 1993 VA general examination the Veteran did not complain of any psychiatric symptoms or conditions. During an April 2002 VA neurologic examination he complained of headaches brought on by stress, and described bouts of irritability and angry outbursts. The Veteran was previously denied service connection for depression in an August 2002 rating decision. VA treatment records show that the Veteran failed to show to scheduled mental health appointments in December 2006, January 2007, June 2007 and November 2007. A January 2006 PTSD screening for the Veteran was negative. VA outpatient treatment records reveal that in April 2007 the Veteran reported for initial mental health outpatient treatment. He described his social history to the psychologist, and noted that he had a history of fights in school, and in basic training. He reported working as fire rescue on the flight deck, and the stress of taking care of planes that came in on fire. In a May 2007 VA mental health note, the Veteran described his anger and problems with authority. He related problems with customers and others at work. He was diagnosed with adjustment disorder with depression, intermittent explosive disorder, and there was a notation to rule out antisocial personality disorder. In August 2007, the Veteran reported that he was stressed and irritated due to dealing with the custody of his son; he described that his ex-girlfriend "dumped" his son on him, and that he was having difficulty caring for the child as he was unemployed. The diagnosis was adjustment disorder with mixed emotions and a notation was made to rule out antisocial personality disorder. In February 2008 he was still feeling quite stressed by the custody situation with his son, who was living with him but for whom he was still paying child support. In February 2008 the Veteran filled out an self-assessment form for the Buffalo Vet Center, which allowed him to address common PTSD symptoms by circling (on a scale from one to five) the level he felt his symptoms reached. Notably, he marked that he had completely lost interest in activities he used to enjoy, he had trouble falling or staying asleep, and he felt he was always "superalert" or watchful. In an additional February 2008 treatment note from the Buffalo Vet Center the Veteran was assessed as having several readjustment issues to address In March 2008 the U.S. Army and Joint Services Records Research Center (JSRRC) verified the Veteran's stressor information. The verification included an Internet article detailing the partial ejection of the bomb navigator, including first person descriptions of the events from the pilot and the bomb navigator (who survived with minor arm injuries). In June 2009 the Board remanded the claim so that the RO or AMC could (1) request that the Veteran provide information referable to all mental health treatment he had received since August 2008, and (2) so that he could be scheduled for a VA mental health examination. In June 2009 the AMC sent the Veteran a letter requesting he provide information relating to any mental health treatment he had received since August 2008. The record shows that the Veteran did not respond to this request. In July 2009 correspondence the AMC notified the Veteran that a nearby VA medical facility would be contacting him with the date, time and place of the VA examination that was requested. In July 2009 correspondence the VA Western New York Health Care System (Western NYHCS) notified the Veteran that he was scheduled for a VA examination in August 2009. Additional evidence of record shows that he failed to report to this scheduled examination. The June and July 2009 correspondence from the AMC and Western NYHCS was sent to the only address of record for the Veteran and there is no indication that any of the letters were returned to sender. Analysis The evidence of record shows that the Veteran has been diagnosed with adjustment disorder. What remains to be shown is that the adjustment disorder is related to any incident of service, or was incurred in service. The Veteran was discharged from service in November 1992, and the earliest treatment for a psychiatric disorder occurred in April 2007, nearly 15 years later. He has not been diagnosed with a psychosis. As such he did not meet the statutory presumptions of entitlement under 38 C.F.R. §§ 3.307, 3.309. The record does not contain a positive medical nexus opinion linking a diagnosed psychiatric disorder to service. The mental health treatment notes that contain the only diagnoses of record, note stressful childhood, service, and post- service events, but do not link the diagnoses to any single event. In the April 2007 treatment note, the Veteran described a history of anger and violence that predated his active service. The purpose of the requested VA examination was to obtain information and/or evidence, which may be dispositive of the appeal. The Veteran was placed on notice that pursuant to 38 C.F.R. § 3.655 (2009) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Veteran was informed of this rule in the June 2009 Board remand. The record shows that the Veteran was scheduled for a VA examination in August 2009. He did not show up to the appointment, nor did he provide a good cause for missing the appointment. The address used to notify the Veteran is the same addressed used throughout the claims file, including during his June 2007 VA spine examination-which the Veteran reported to and completed. Additionally, the record shows that the Veteran failed to show up to several VA mental health outpatient appointments. In assessing the claim, based on the available evidence of record, the Board finds that there is insufficient evidence to warrant service connection for a psychiatric disorder, to include PTSD. Despite the Veteran's contentions otherwise, there is no persuasive evidence to support a finding that his psychiatric disorder is etiologically related to service or any incident therein. The record does not show pertinent complaints or medical treatment for a number of years after discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the lack of any evidence of a continuing psychiatric disorder for over 15 years between the period of active duty and the evidence showing diagnosis is itself evidence which tends to show that psychiatric disorder was not incurred as a result of service. With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The first evidence of record that the Veteran believed he had a psychiatric disorder due to service is from June 2001, when he claimed service connection for depression. While he may report on the symptoms of his psychiatric disorder; the evidence of record does not contain a proper (DSM-IV) diagnosis nor a medical nexus opinion. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that service connection for an acquired psychiatric disorder, to include PTSD, must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs