Citation Nr: 1039903 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 05-21 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1969 to August 1971. He was stationed in Korea from July 1969 to August 1971. He also has 9 years of unverified service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that decision, the RO reopened a claim for service connection for PTSD and denied the claim on the basis of the merits. The Veteran perfected an appeal as to that denial. In the RO's July 2004 rating decision, the RO reopened the claim and denied it on the merits. Even though the RO reopened and adjudicated the psychiatric disorder claim on the merits, the Board is required to first determine that new and material evidence has been presented in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In that regard, in a November 2007 decision the Board reopened the claim and then remanded the reopened claim to the RO for further development and to provide required notice under the Veterans Claims Assistance Act of 2000 (VCAA). The RO denied service connection for an acquired psychiatric disorder identified as PTSD. Though claimed by the Veteran and addressed as a claim for PTSD, a claim for a specific psychiatric disability encompasses a claim in general for any psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection specifically for a psychiatric disability of PTSD encompass claims for service connection for all psychiatric disabilities; an appellant generally is not competent to diagnose his mental condition, he is only competent to identify and explain the symptoms that he observes and experiences). In a statement received in November 2007, the Veteran raised a claim for service connection for a disability of the lower extremities. The issue of entitlement to service connection for a disability of the lower extremities being referred has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. There is no competent medical evidence of a diagnosis of PTSD. 2. There is no competent medical evidence showing that the Veteran has a psychiatric disorder that is related to service or to a service-connected disability, or that any psychosis was manifested within one year of service discharge. CONCLUSION OF LAW An acquired psychiatric disorder to include PTSD, was not incurred in or aggravated during military service; and is not proximately due to or the result of a service-connected disease or disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 4.125(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the AOJ, even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Though notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matters decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the Veteran has been provided all information needed for a reasonable person to prove the claim. In any event, the Federal Circuit recently vacated the previous decision by the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of letters in February 2002, April 2003, June 2007, and December 2007. These documents in combination provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific rating criteria which would provide a basis for the service connection claim on appeal and decided below. In the April 2003 and December 2007 letters, the RO specifically notified the Veteran of information regarding claims for service connection for PTSD including based on personal assaults. The RO has provided adequate notice of how effective dates are assigned. The claim was subsequently readjudicated most recently in a June 2010 supplemental statement of the case. To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided, the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim on appeal. In any event, the claimant has never alleged how any content error prevented him from meaningfully participating in the adjudication of his claim. As such, he has not established prejudicial error in the content of VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment and personnel records, and records of medical treatment received privately and from VA, and VA examination reports. VA appropriately examined the medical history of the Veteran's claimed disability for compensation purposes addressing the claimed disorder decided below. Findings from the May 2010 examination report are adequate for the purposes of deciding the claim on appeal decided below. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard the Board is satisfied as to compliance with the instructions from its remand during the pendency of the appeal. The Board finds that the RO complied with these instructions. The Board remanded the case to the RO in November 2007, in part to provide required notice regarding the claim on appeal, and for the RO to obtain additional evidence including by providing a VA examination of the Veteran for his claimed psychiatric disorder. Review of the record shows that the RO substantially complied with these orders on remand. The Veteran was also notified of the opportunity to present testimony before the Board, but he declined. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Veteran essentially maintains that he has an acquired psychiatric disorder claimed as PTSD, which he claims to be due to stressful events in service. When determining service connection, all theories of entitlement, direct and secondary, must be considered by the Board if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, claims which have no support in the record need not be considered by the Board, as the Board is not obligated to consider "all possible" substantive theories of recovery. That is, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Service connection may be granted for disability resulting from a disease contracted or an injury sustained while on active duty in the military. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For cases in which a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, then such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994))); a link, established by medical evidence, between the Veteran's current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor 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). When a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Court has held that in view of the subjective nature of the DSM-IV criteria for accessing the sufficiency of a PTSD stressor, the question of the sufficiency of the asserted stressor(s) is a medical question requiring assessment by a mental health professional. Cohen, supra at 142, citing West, 7 Vet. App. 70 (1994). Further, the Court in Cohen noted that "mental health professionals are experts and are presumed to know the DSM requirements applicable to the practice and to have taken them into account in providing a PTSD diagnosis..." Id. If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence are described in 38 C.F.R. § 3.304(f)(3), and include evidence of behavior changes following the attack. 38 C.F.R. § 3.304(f)(3). Service connection may be established on a secondary basis for a disability, shown to be proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In the absence of proof of a present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay statements are considered to be competent evidence when describing the symptoms of a disease or disability or an injury that the Veteran is capable of perceiving. However, if the determinative issue involves a question of medical causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not show that the Veteran possesses medical expertise and he does not argue otherwise. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). If there is an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2009). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Service treatment records show that in May 1969 the Veteran requested to be seen in the mental hygiene clinic; there are no complaints or findings associated with that note. Other than that visit, the service treatment records contain no evidence that the Veteran was ever seen for treatment for any psychiatric problems during his active service. There are no other service treatment records containing complaints or findings of any psychiatric condition, including associated with any physical complaints. The report of a separation examination in August 1971 shows that on examination, the psychiatric evaluation was normal. Service personnel records include the Veteran's DD Form 214, which shows that his military specialty was armor crewman. There is no indication in the service personnel records that the Veteran ever participated in combat and he has not claimed that. A report of medical history dated in July 1982 shows that the Veteran reported he had not had any frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. The report of examination in July 1982 shows that on examination, the psychiatric evaluation was normal. After service the first medical evidence of psychiatric symptomatology is contained in the report of an April 1994 VA examination. At that time the Veteran reported that he served in Korea as a truck driver. He reported that specific traumatic events during service involved an incident in which two military police were apparently in the process of arresting him at a bar where there was a bar fight, and at that time one of the military police hit him on the back of the head. He also reported witnessing harassment mortar shells that exploded in the air, being dispatched on alert status, knowing of reports of enemy agents infiltrating, though he never had any direct dealing with enemy agents. The examiner noted that the Veteran endorsed specific symptoms of PTSD. That examiner did not record a diagnosis. The report of a June 1994 VA examination shows that the examiner noted that the Veteran reported no direct stress such as fire fights, seeing an unusual tragedy, or direct experience. The examiner opined that the reported stressor was more of the general atmosphere of being in Korea, and being in an area where there were fears of attack, but it never occurred. The examiner noted the reported episode the Veteran was focusing on, the military police episode, which the examiner opined as probably not being as marked a stressor as the general atmosphere of being in that area. The examiner noted that the Veteran reported a story of a friend in service who disappeared in Korea and was later found buried in a rice paddy; however the Veteran did not see the body or directly experience it. After examination the report contains an Axis I diagnosis of PTSD, chronic, mild to moderate. The examiner opined that if the Veteran had been exposed to direct combat situations, there would be no puzzlement or doubt in his mind in terms of making a diagnosis. He also noted that exposure to the atmosphere in Korea had more chronic stress than other peacetime situations. He opined that the Veteran was probably more susceptible to the stress, and was exposed to this chronic lower level of stress for nearly three years. He opined generally that accumulative stress at lower levels could program in PTSD type of patterns. A March 1999 VA medical record shows that a VA social worker reviewed the Veteran's chart and noted that it appeared the Veteran was never in combat but was hit in the head with a nightstick by a military police. The social worker opined that the incident did not meet DSM IV criteria for the diagnosis of PTSD; and that the Veteran had some PTSD symptoms but did not meet all the criteria for that diagnosis. In a November 2003 letter, a VA medical doctor and director of mental health services in Seattle Washington stated that a fellow serviceman attested that the Veteran was victim of an unprovoked attacked, and severely beaten with a club about the head by a Thai military policeman in Korea; that the Veteran's head wounds required multiple sutures at an aid station; that the Veteran feared he would be killed during the attack and was terrified for several weeks thereafter; and soon began experiencing intrusive memories and frequent nightmares of the traumatic beating. The VA physician stated that the Veteran had severe chronic PTSD symptoms that met DSM IV criteria for PTSD. In an April 2004 letter, a VA staff psychiatrist noted that the Veteran carried a diagnosis of chronic PTSD as a result of traumatic events that occurred in service. The report of a May 2010 VA examination for mental disorders shows that the examiner reviewed the Veteran's claims file and interviewed the Veteran for 60 minutes. The Veteran reported stressors involving treatment received during basic training and later, including that his drill sergeant would scream at him and put his foot on the Veteran's back, to which the Veteran responded by saying "if you keep it up, we can fight." He also reported the stressor involving being hit on the head by a military police; to which he responded by wondering why he hit the Veteran in the head. He said he turned around and the military policeman was gone. He reported that his sergeant committed suicide and he witnessed the sergeant when they took him out of the barracks, covered by a sheet. He also reported that he had a friend who was killed while overseas. That serviceman was killed and put in a rice paddy and moved to a drainage ditch. The Veteran said he was not actually present, but heard about it. The Veteran reported that he was always scared when by himself because he never knew what to expect, and that his military duties included hauling ammunition and rations to bases along the demilitarized zone. After review of the claims file, which was discussed in the examination report, and examination of the Veteran, the report contains a diagnosis on Axis I of cognitive disorder not otherwise specified. The examiner opined that, as was his opinion in 2009, and as echoed by practitioners in the Trauma Recover Program, it continued to be his opinion that the Veteran did not report a stressor that meets criterion for a diagnosis of PTSD. In this regard the examiner noted that the most often mentioned stressor was the head trauma; however, this took him by surprise, and there had never been any reports of a response of intense helplessness or fear at the time. The examiner noted that in fact, the Veteran's first response was to feel anger and to want to fight the assailant. The examiner opined that the other reported stressors did not meet the criterion for PTSD, as they were not witnessed firsthand. The examiner noted that feeling on edge when performing dangerous military activities was to be expected, and by itself is not a criterion A stressor. The examiner opined that in the absence of a criterion A stressor, a diagnosis of PTSD cannot be made. The examiner opined that he could not link the diagnosed cognitive disorder to service without resort to mere speculation. In this regard, the examiner explained that there was very little evidence about the onset or course of the cognitive disorder to provide whether there was a relationship of the disorder to service. The Court has stated that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In this regard, the examiner explained that there was very little about the onset or course of the cognitive disorder to provide whether there was a relationship of the disorder to service. It was further noted that the Veteran's history of hypertension tends to point to stroke; but there was also a history of alcoholism. The examiner opined that previously diagnosed depression is often associated with post-stroke depression. After a careful review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder to include PTSD. First, on review of the medical evidence on file, the preponderance of the evidence is against a finding of a present PTSD. The examiner at the May 2010 VA examination opined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. That opinion was based on a thorough review of the claims file and examination of the Veteran for the purpose of evaluating for PTSD. The Board therefore finds this evidence very probative of the issue of whether there is a diagnosis of PTSD. Although some treatment records and statements included a diagnosis of PTSD, the Board finds that evidence not as probative, as these medical records were based merely on a history as provided by the Veteran; and were not consistent with the remainder of the clinical records on file. The opinion of the June 1994 VA examiner was merely a generic opinion and does not specifically apply to the Veteran's case background. Second, as explained above, the preponderance of the competent evidence is against a finding that any acquired psychiatric disorder other than PTSD is due to service. The medical opinion linked the cognitive disorder as more likely related to a history of hypertension and/or alcoholism. That examination was based on a review of the Veteran's claims files and examination of the Veteran. There are no firm and clear opinions based on a complete examination that are to the contrary. The evidence does not show that any current diagnosed psychiatric disorder is linked directly to service. Throughout the Veteran's active service, there is no evidence that the Veteran sought treatment for any psychiatric problems except for one occasion in May 1969, when the Veteran requested to be seen in the mental hygiene clinic; however, there is no evidence that the Veteran followed through to receive any treatment. At the Veteran's August 1971 separation examination, the psychiatric evaluation was normal. Review of the evidence shows that the weight of the evidence demonstrates there is no etiological relationship between any current acquired psychiatric disorder diagnosed, and any event, injury, or disease in service. Nor is there any evidence to show that a psychosis was shown within a year of discharge from service. The fact that there is no evidence of psychosis to a compensable degree within one year of service separation precludes granting service connection for any claimed psychiatric disorder on the basis of pertinent presumptive regulations pertaining to psychosis. 38 C.F.R. §§ 3.307, 3.309. Although the Veteran is competent to describe associated symptoms capable of lay observation, he is not competent to give a medical opinion on either diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); See also Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). While the Veteran may believe he has an acquired psychiatric disorder to include PTSD, which is due to service, he lacks the medical training to diagnosis such conditions. In sum, the preponderance of the evidence is against the claim that a current acquired psychiatric disability is related to service. Further, the competent evidence does not show a diagnosis of PTSD for which service connection may be granted. As such, consideration of other elements such as nexus/stressors is unnecessary. The preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder to include PTSD. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder to include PTSD, is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs