Citation Nr: 1035563 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 06-04 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1970. This period of active duty included service in Vietnam from December 1967 to January 1969, during which he engaged the enemy in combat. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran's appeal also initially included the issue of service connection for malaria. That claim, however, was denied in a February 2008 Board decision and is not presently on appeal. Simultaneously, the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder, to include PTSD, was remanded for further development. Such development was to include: (1) efforts to corroborate the Veteran's reported combat stressors through the Joint Services Records Research Center (JSRRC); (2) if efforts to corroborate the Veteran's combat stressors were successful, scheduling the Veteran for a VA examination to determine the nature and etiology of his claimed psychiatric disorder; and (3) readjudicating the Veteran's claim. The Board is satisfied that the action directed in its remand has been completed, and is now prepared to proceed with appellate consideration of the issue framed above. FINDING OF FACT The Veteran is not diagnosed with PTSD or any other acquired psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable Laws and Regulations Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In claims involving PTSD specifically, service connection generally requires medical evidence showing a diagnosis of PTSD; 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. See 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). For PTSD claims that specifically involve a reported stressor that is related to the veteran's fear of hostile military or terrorist activity, revisions to 38 C.F.R. § 3.304(f), effective July 13, 2010, have eliminated the requirement for corroborating the reported stressor event. In such cases, the revised regulation requires that: (1) a VA psychiatrist or psychologist, or contract equivalent, must confirm that the reported stressor is adequate to support a diagnosis of PTSD; (2) the reported stressor is consistent with the places, types, and circumstances of the veteran's service; and (3) the veteran's symptoms are related to the reported stressor. Relaxation of Evidentiary Standard for Establishing In-Service Stressors in Claims for Posttraumatic Stress Disorder - 38 C.F.R. § 3.304(f)(3), (VBA) Fast Letter No. 10-05, at 1 (July 16, 2010) (on file with author). The Board notes that these revisions are not applicable to claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of- war, or as a result of a personal assault. Whereas the Veteran's reported stressors were experienced during combat, these revisions are not applicable in this case. In cases where the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (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 U.S.C.A. § 1154(b). In such instances, the evidence must also show the other general elements required for service connection for PTSD (i.e., a diagnosis of PTSD and medical evidence establishing a link between current symptoms and the reported combat stressor). II. Analysis As expressed in his July 2005 claim and statement listing his combat history, the Veteran contends that he presently suffers from PTSD that was caused by extensive combat experience in Vietnam. The Veteran's combat experiences are well-documented by his service personnel records and by unit records obtained by JSRRC. Service treatment records from March 1969 reflect that the Veteran was treated for situational maladjustment reaction with slight elements of post combat stress syndrome. At that time, the Veteran reported nervousness that caused him to be unable to perform his duties. According to the Veteran, these symptoms were present since his return from Vietnam and did not exist before his exposure to combat. Follow-up service treatment records from May 1969 reflect that the Veteran was reporting feelings of anger. Although the Veteran was diagnosed again with post combat stress syndrome, the service physician concluded that it had resolved. Indeed, an April 1970 separation examination report reflects that a clinical psychiatric examination was normal. Similarly, the separation examination report does not reflect any psychiatric symptoms reported by the Veteran. Private post-service treatment records from 1976 through 2001 do not indicate diagnosis or treatment of a psychiatric disorder, nor do they reflect any psychiatric symptoms or illnesses reported by the Veteran. At a June 2010 VA psychiatric examination, the Veteran expressly denies receiving any prior psychiatric or substance abuse treatment. He reports insomnia that was characterized by five to seven hours of sleep per night. In interviewing the Veteran, the examiner notes that he is generally evasive regarding his combat experiences in Vietnam. The Veteran denies, however, ever feeling scared, horrified, or intensely fearful as a result of his experiences. He also denies experiencing intrusive thoughts or images, or that recollections of his experiences during service cause him any distress. The Veteran also denies having clinically distressing nightmares or flashbacks. Although the Veteran describes mild to moderate symptoms of social isolation that began in his 20's or 30's, he reports that he regularly socializes with friends. He reports that he enjoys helping friends with odd jobs around the house and that he feels connected to them by serving them in this way. The Veteran also describes his marriage as being on good terms. Occupationally, he reports that he was self-employed as a carpenter for approximately 40 years before electing to retire in October of 2009. He denies ever experiencing difficulties on the job and stresses that he elected to retire. The Veteran reports that his concentration is "not all that great," but denies any significant impairment due to his problems with concentration. He denies any difficulty with anger, except when drinking. According to the Veteran, he drinks a six pack of beer every day and he states that he drank six or seven beers the day before the examination. A mental status examination reveals that the Veteran was suboptimally groomed and casually dressed. He is oriented in all spheres. Affect is flat and guarded with congruent mood. Eye contact is sparse. Speech rate, tone, and volume are within normal limits. Although speech content is logical, goal- directed, and free of overt delusions, the examiner specifically observes that the Veteran's responses are notably brief. The Veteran denies suicidal or homicidal ideation and he is judged by the examiner to be of no danger to himself or others. He denies any history of auditory, visual, tactile, or other hallucinations, as well as other symptoms of psychosis and/or mania. Insight and judgment are fair. Based upon the examination and review of the claims file, the examiner provides a multi-axis diagnosis that includes a diagnosis of alcohol abuse, but no psychiatric disorders. Regarding PTSD, the examiner determines that the Veteran does not currently meet the criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiner elaborates that under the DSM-IV, a diagnosis of PTSD specifically requires not only exposure to trauma, but also a reaction of extreme fear or horror in response to such trauma exposure, which the Veteran denies. The examiner also observes that the Veteran denies lasting effects, including negative emotional distress, due to his combat experience. In this regard, the examiner notes that the Veteran also denies significant symptoms of re-experiencing his trauma (such as nightmares or flashbacks) that cause him clinically significant levels of distress. The examiner notes that the Veteran displays mild avoidance marked by difficulty remembering details of his combat experiences and mild anhedonia and social isolation. Arousal difficulties are limited to sleep disturbance, which appear to cause the Veteran strain, but to which the Veteran states that he has adjusted. Although the examiner finds that the Veteran does not meet the DSM-IV criteria for PTSD and therefore does not provide such a diagnosis, she cautions that the Veteran's high rate of alcohol use impairs his ability to identify and relate underlying symptoms of psychiatric distress, which may or may not be evident. The examiner concludes that as long as the Veteran's consumption of alcohol remains at its present level, she is unable to resolve the issue of whether the Veteran may have symptoms of underlying PTSD without resort to speculation. The Board recognizes that an opinion that is relatively speculative in nature is generally due limited probative value. For example, an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). In cases involving a VA examiner's opinion that an opinion cannot be rendered without resort to speculation, the United States Court of Appeals for Veterans Claims (Court) has observed that VA is not required to proceed through multiple iterations of repetitive medical examinations until it has obtained a conclusive opinion or formally declares that further examinations would be futile. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). It must be clear, however, from some combination of the examiner's opinion and the Board's analysis of the record, that the examiner has not invoked the phrase "without resort to mere speculation" as a substitute for the full consideration of all pertinent and available medical facts. Id. The Court noted that such a standard requires the examiner's assessment be made after all due diligence has been exercised in seeking relevant medical information that may have bearing on the requested opinion. Id. at 389. Though a bald statement by the examiner that it would be speculative to render an opinion as to etiology or diagnosis is fraught with ambiguity, the Board may rely on an examiner's conclusion that an opinion would be speculative if such an opinion is supported by an explanation of the basis for such an opinion or is otherwise apparent in the Board's review of the evidence. Id. at 390. Further, VA must ensure that it must be clear, from either the examiner's statements or the Board decision, that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. Id. (quoting Daves v. Nicholson, 21 Vet. App. 46 (2007)). The examiner's use of the phrase "without resort to mere speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Id. Finally, the examiner should clearly identify precisely which facts cannot be determined. Id. In the June 2010 VA examination report, the VA examiner expressly notes the relevant current psychiatric symptoms as reported by the Veteran. The examiner also identified the specific DSM-IV criteria for PTSD and applied the subjective and objective findings from the examination to that criteria. The Board also notes that these findings were also obtained from a review of the claims file, which contained the Veteran's complete service personnel and service treatment records and all known post- service treatment records. Moreover, the Veteran has denied receiving any psychiatric treatment. Under the circumstances, the examiner's diagnosis, although speculative, is supported by a thorough discussion of the examiner's rationale that is itself based upon all pertinent and available medical facts. In her report, the examiner specifically expresses that the veracity of the Veteran's reported symptoms during the VA examination is questionable due to the Veteran's heavy, and apparently habitual, use of alcohol. She does not identify any additional tests or information that might further illuminate her analysis. Since the Veteran expressly denies any prior psychiatric or substance abuse treatment, there is no additional evidence or information that has yet to be obtained that might further assist the examiner in her analysis. The Board also points out that the examiner's opinion that the accuracy of the veteran's reported symptoms may be questionable is itself speculative. Under the circumstances, the Board accepts the VA examiner's finding that the Veteran does not presently meet the DSM-IV criteria for PTSD and affords it full probative weight. As noted previously, a multi-axis diagnosis provided by the examiner diagnoses alcohol abuse, but does not diagnose a psychiatric disorder. These findings are not disputed by other evidence in the record. In the absence of evidence showing a current diagnosis of PTSD, the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). III. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the Veteran was notified of the information and evidence needed to substantiate and complete a claim for an acquired psychiatric disorder, to include PTSD, in an August 2005 notice letter that was issued before the RO's December 2005 initial rating decision. In a separate March 2006 letter, the Veteran was also notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the matter was not subsequently readjudicated by the RO. Nonetheless, any deficiencies of notice in accordance with Dingess/Hartman are not prejudicial in this case, as the Veteran's claim is being denied. Id. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate a claim. The Veteran's service treatment record, service personnel records, and identified post-service private treatment records have been obtained. As noted previously, the Veteran has not reported any post-service private or VA psychiatric or substance abuse treatment. Additionally, he was afforded a VA examination in June 2010. This examination was performed in conjunction with a review of the claims file by the examiner. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs