Citation Nr: 1036029 Decision Date: 09/23/10 Archive Date: 09/30/10 DOCKET NO. 06-18 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision the Regional Office (RO) of the Department of Veterans Affairs (VA) in Portland, Oregon. The Veteran testified before the undersigned Acting Veterans Law Judge at a Board Videoconference hearing in April 2009. A written transcript of this proceeding has been associated with the claims folder. This case was remanded by the Board in May 2009. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). While the Veteran has claimed service connection only for PTSD, review of the record indicates other psychiatric diagnoses, including major depressive disorder, intermittent explosive disorder, and possible psychoses. The Court of Appeals for Veterans Claims has found that 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has recharacterized the issue on appeal to encompass all of the Veteran's psychiatric diagnoses. FINDINGS OF FACT 1. The Veteran has not been diagnosed with PTSD based on a verified in-service stressor. 2. There is no evidence of a psychiatric disorder manifesting in service, or within one year after service, and no competent medical evidence linking the Veteran's current psychiatric disorder with his military service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the Veteran's assertion that an acquired psychiatric disorder, to include PTSD, is related to his service with the United States Army from February 1972 to February 1975. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD, in particular, 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2002) (requiring PTSD diagnoses to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV)). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39843 (July 13, 2010). This revision adds to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether the veteran engaged in "combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If the VA determines the veteran engaged in combat with the enemy and his/her alleged stressor is combat-related, then his/her lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, the VA determines either that the veteran did not engage in combat with the enemy or that he/she did engage in combat, but that the alleged stressor is not combat related, then his/her lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his/her testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998) (wherein the Court stated, "If the veteran engaged in combat, his/her lay testimony regarding stressors will be accepted as conclusive evidence of the presence of in-service stressors."). If the veteran was not engaged in combat, he/she must introduce corroborative evidence of his/her claimed in-service stressors. Factual Background In the present case, the Veteran has reported a non-combat stressor, the witnessing of an accidental shooting of a fellow soldier while the Veteran was stationed in Germany. In August 2009, the RO received a military police report verifying that a service member was accidently shot in June 1973 in the arms room on a U.S. military base in Germany. At the time of the shooting, the Veteran was the assigned guard for the arms room, but he had left his post briefly and asked a fellow soldier, the victim of the shooting, to cover for him at the time. Upon returning, the Veteran found his friend shot and bleeding profusely. As this incident is verified by independent collaborating evidence, in the form of the military police report, it is accepted as verified by the Board. See 38 C.F.R. § 3.304(f). The claimed stressor having been verified within the record, the Board must next consider whether a current diagnosis of PTSD has been established. Alternatively, the Board must consider whether an acquired psychiatric disorder other than PTSD is related to the Veteran's military service. The Veteran's initial service connection claim for PTSD was received in June 2004. At that time, he reported being shot in the hand. Service treatment records confirm he was shot in the hand by a pellet gun in 1973. The pellet was removed and he was returned to duty. Service treatment records are otherwise negative for any diagnosis of or treatment for a psychiatric disability, and no psychiatric abnormality was noted on his January 1975 service separation examination. The Veteran first sought VA treatment for psychiatric problems in June 2004. At that time the Veteran was noted to have a history of depression, with chronic drug and alcohol abuse. On initial intake in June 2004, the Veteran was diagnosed with cocaine and alcohol dependence and a possible substance-induced psychosis, but PTSD was ruled out. Later that month, however, a diagnosis of PTSD was rendered by a VA nurse. This diagnosis was based both on the Veteran's reported in-service stressor, as well as the fact he was "physically, emotionally, and sexually abused" as a child. Post-service, the Veteran also reported being the victim of a 2001 car-jacking, during which he was struck several times in the head, resulting in a severe concussion. On admission to a VA inpatient treatment program in January 2005, he was diagnosed with PTSD. No specific stressor event was noted. The Veteran was again diagnosed with PTSD by a VA psychiatrist in May 2005. Again, however, no specific stressor event was cited in conjunction with this diagnosis. A VA treatment summary issued in September 2005 again listed a diagnosis of PTSD, without a specified stressor event. The Veteran was afforded a VA psychiatric examination in June 2005. His claims file was reviewed by the examiner in conjunction with the examination. Review of the record indicated the Veteran had several disciplinary actions during military service, including numerous Article 15s. In January 1973 he was charged with drug possession, and in January 1973 he was charged with misconduct. The Veteran reported physical and emotional abuse from both this mother and father growing up, and stated his father also sexually abused him on one occasion. His drug and alcohol abuse allegedly began during service. After evaluating the Veteran and reviewing his claims file, the VA examiner diagnosed alcohol and polysubstance dependence, and a depressive disorder. An anti-social personality disorder was also diagnosed. The examiner found a diagnosis of PTSD was not warranted, and that the cause of the Veteran's emotional problems was his "Antisocial Personality Disorder and the years of chronic polysubstance dependence, neither of which are due to or caused by the events on active duty." A VA general medical examination was also afforded the Veteran in June 2005, and PTSD was diagnosed. No specific stressor was cited as the basis for this diagnosis, however. During the April 2009 Board hearing the Veteran testified that following the shooting incident, he began to experience depression and alienation, and fell into a pattern of drug and alcohol abuse for many years thereafter. Pursuant to the Board's May 2009 remand, the Veteran was afforded a VA psychiatric examination conducted by a psychiatrist in January 2010. His claims file was reviewed in conjunction with the examination. The Veteran reported physical and emotional abuse from both this mother and father during his childhood, stating he was beaten by both parents on numerous occasions. He also stated his mother burned his hands on a hot stove on several occasions, and his father was an alcoholic. His mother entered a psychiatric hospital when he was approximately 12 years of age, and his parents divorced at that time. He also stated his father sexually abused him on one occasion. The Veteran responded by running away on several occasions, and was jailed at least once for running away. He stated that his military service was without disciplinary action until the June 1973 shooting in which his friend was injured; however, the Veteran later admitted being given several Article 15s prior to June 1973, including one for drug possession. Since service, he has, by his report, experienced social isolation, depression, fits of anger, irritability, and violent outbursts. Two suicide attempts were also reported. He last worked in approximately 1986, after which he lived on the streets and begged and stole to support his drug habit. Upon review of the record, the examiner noted that the Veteran had previously reported first using alcohol at age 14, well prior to military service. When asked about his current nightmares, the Veteran did not report any related to the in- service shooting incident. After evaluating the Veteran and reviewing his claims file, the VA examiner diagnosed intermittent explosive disorder, dysthymia, and antisocial and borderline personality disorder. A history of alcohol and drug abuse was also noted. Based on his review of the record and interview of the Veteran, the examiner concluded a diagnosis of PTSD was not warranted, despite the fact the claimed stressor was verified. While the Veteran was convinced all his lifelong problems were related to the shooting incident in service, the examiner concluded the Veteran's psychiatric problems "are directly related to his pre-military stressors and post-military lifestyle." It was "highly less likely than not" the in- service incident was the cause of his subsequent alcohol and drug issues, as this incident was an "extremely minor part of this veteran's total life experience." In the examiner's opinion, the Veteran would have likely exhibited his current patterns of behavior even if the in-service shooting incident had not occurred. Analysis After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a an acquired psychiatric disorder, to include PTSD. Specifically, the record does not indicate that a psychiatric disability manifested during military service or within a year thereafter. The Veteran was first diagnosed with a psychiatric disability in 2004, more than 25 years after service separation, and no competent evidence has been presented establishing onset of a psychiatric disorder prior to that time. Additionally, while the Veteran has previously been diagnosed with PTSD, recent medical records show that this diagnosis was in error and that the Veteran's psychiatric problems are best defined as intermittent explosive disorder, dysthymia, and antisocial and borderline personality disorder. Furthermore, a preponderance of the evidence shows that the Veteran's prior diagnoses of PTSD have not been attributed to his in-service stressors. As noted above, two reported incidents have been verified, the Veteran receiving a pellet gun wound to his hand, and the injury to his friend in his unit's arms room. In reaching this conclusion, the Board has considered both the positive and negative medical opinions provided within the record. "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In considering the various opinions of record, the Board notes that the diagnoses of PTSD rendered in 2004-05 either fail to cite a specific stressor, or cite a combination of events, to include the Veteran's pre-service childhood traumas of emotional, physical, and sexual abuse from both of his biological parents. Where examiners were directed in June 2005 and January 2010 to both review the Veteran's claims file and interview the Veteran himself, the two VA examiners concluded a diagnosis of PTSD was not warranted. The Board finds the June 2005 and January 2010 examinations and opinions to be the most probative, as they are based both on personal examination of the Veteran and full review of the record. Additionally, the January 2010 examiner, a VA psychiatrist, provided a detailed basis for his opinion, citing to facts within the record and statements made by the Veteran himself. For example, when describing his nightmares, the examiner noted that none of the Veteran's reported nightmares appeared to be related to the shooting incident. For these reasons, the Board finds the June 2005 and January 2010 opinions to be the most probative and compelling. The Board also notes that the Veteran claims his psychiatric problems are solely the result of his military service to include his in-service stressors. However, as a layperson, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, psychiatric disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the award of service connection for a psychiatric disability, to include PTSD, as such a disorder did not manifest during military service or within a year thereafter, and a current diagnosis based on an in-service stressor has not been established within the record. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Substantially compliant notice was sent in July 2004 and July 2009 letters and the claim was readjudicated in a May 2010 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded VA medical examination on several occasions, most recently in January 2010. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In April 2009, the Veteran was afforded the opportunity to testify before the undersigned Acting Veterans Law Judge. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs