Citation Nr: 1122744 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 09-13 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a bilateral ankle disorder. 3. Entitlement to service connection for residuals of a bilateral knee disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2005 to April 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to service connection for residuals of bilateral ankle and knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The competent and probative medical evidence of record does not demonstrate a current diagnosis of PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a February 2007 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records held by any federal agency. This letter also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the February 2007 letter sent to the Veteran also included the type of evidence necessary to establish a disability rating and effective date for the service connection claim for PTSD. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West Supp. 2010); 38 C.F.R. § 3.159 (2010). In connection with the current service connection claim for PTSD, VA has obtained the Veteran's service treatment records, a January 2008 Vet Center intake report, and VA outpatient treatment records from January 2007 to March 2009. The Veteran was also provided VA examinations in connection with his claim in August 2007 and February 2009. The VA examiners reviewed the VA's claims file, noted his medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. All obtainable evidence identified by VA relative to the claim has been obtained and associated with the claims file. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). II. Decision In a December 2006 Application for Compensation and/or Pension, via a VA Form 21-526, the Veteran reported that he was told in a post-deployment health reassessment (PDHRA) that he was suffering from PTSD and mild depression. In an April 2009 substantive appeal, via a VA Form 9, he also reported that he "get[s] angry while driving and just about anything gets [him] angry." The Veteran contends that service connection is warranted for his claimed PTSD. 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 (West Supp. 2010). Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2010). To establish entitlement to service connection for PTSD a Veteran must provide: medical evidence diagnosing PTSD; a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125(a) (2010). During the course of the appeal, the criteria for service connection for PTSD, and specifically verification of PTSD stressors, have changed. See 38 C.F.R. § 3.304(f) (2010). The amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred "[i]f a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service." Id. The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. The amended criteria is for application for claims that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010, as in this case. See 75 Fed. Reg. 39843 (July 13, 2010). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Review of the evidentiary record reveals there is no competent evidence showing that the Veteran currently has PTSD. Service treatment records are silent as to any complaints, treatment, or diagnosis for this claimed psychiatric disability. In fact, a March 2006 PDHRA, documents the Veteran's denial of PTSD-related symptoms. Although he marked "yes" for seeing a coalition wounded, killed, or dead and feeling that he was in great danger of being killed during his deployment, the Veteran also marked "no" for being interested in receiving help for a stress, emotional, alcohol, or family problem. After discharge from service, VA outpatient treatment records from January 2007 to March 2009 reveal conflicting evidence of a diagnosis for PTSD. In January 2007, the Veteran tested negative for a PTSD screening. In May 2008, the Veteran underwent a traumatic brain injury (TBI) consultation, in which the findings were deemed to be consistent with PTSD and no evidence of TBI was found. That same month, the Veteran tested positive for PTSD screening and, based on his oral history, was diagnosed with PTSD and nicotine dependence. The physician marked "N/A" with regards to record review and there was no indication that the Veteran's claims file was reviewed. Subsequently, November 2008 and March 2009 records further report that findings are consistent, in pertinent part, with a diagnosis of PTSD. In January 2008, the Veteran underwent a psychological evaluation documented in a Vet Center intake report. He reported that "since his return of duty in Iraq[,] he has been experiencing an elevated level of anger, especially when in traffic." Following the evaluation, the physician noted the Veteran's neat appearance, appropriate speech and affect, intact memory, and participation in familial and social activities. The physician opined that "the [V]eteran generally functions pretty well both socially and occupational[ly] . . . [and the] reported symptoms do not meet the diagnostic criteria for PTSD." In addition, the Veteran was afforded VA examinations in connection with his claim on appeal in August 2007 and February 2009. At the August 2007 examination, the Veteran reported not being involved in any current mental health treatment, but did take medications in the past for his claimed psychiatric disorder. Upon returning from Iraq in April 2006, the Veteran noted that he began to have mental health symptoms associated with his Iraq War exposure and that his life is "an absolute mess." He currently, but rarely, becomes angry by screaming and yelling, and is verbally abusive to his wife and to other drivers. He drives aggressively at times and does not want cars close to him. He has no motivation, repeatedly watches television, is reclusive, and was previously afraid of bombs on the highway. The Veteran also reported a family history of mental illness and that his anxiety and depression are rare and he sometimes experiences anhedonia. Following the August 2007 examination, the examiner noted the Veteran's denial of nightmares, hallucinations, delusions, and suicidal or homicidal ideations. Based on an interview, mental status evaluation, review of records, and psychological testing consistent with Diagnostic and Statistical Manual of Mental Disorders (4th ed.) of the American Psychiatric Association (DSM-IV), the examiner did not diagnose the Veteran with a psychiatric disability. The examiner opined "that while [the Veteran] indicates that he has changed dramatically since coming back from Iraq[,] when questioned more closely, [the Veteran] denies having any real functional impairment. [The Veteran] may have some features of PTSD including stressors as well as anger and irritation. However, the primary symptoms of PTSD according to DSM-IV TR are not met. There is not a clear link between [his] current emotional impairment and his Iraq War experience." The examiner further explained that the "[Veteran] has some mild features of PTSD . . . [h]owever, he fails to meet the criteria for PTSD in terms of frequency and severity of symptoms . . . [and] [h]e does not have any significant functional impairment." Most recently, at the February 2009 examination, the Veteran continued his complaints of getting angry fast and now extreme aggression when driving. He also reported that he does not fall asleep as easily as he used to and that he is more shut off and withdrawn, including from his wife. He has lost interest in prior enjoyable activities and "sometimes [he] just feel[s] like everybody would be better off without [him]." He denied symptoms of nightmares and flashbacks, but noted having memories of old and destroyed equipment in which people might have been injured or killed, such as rocket and mortar attacks. He also reported attending a few counseling sessions at the Vet Center but stopped, and taking prescription medication "a couple of times" which helped him to sleep better. Furthermore, the Veteran's wife, who reported knowing the Veteran very well prior to his service in Iraq, reiterated the Veteran's contentions that he has changed, is more angry, and they do not communicate as well as they used to. Following the February 2009 examination, the examiner noted review of the Veteran's claims file, which included the May 2008 VA outpatient treatment record and the January 2008 Vet Center intake report. He also noted the Veteran's self-report of suicidal ideation and anger, as well as the Veteran's denial of homicidal ideation, delusions, and hallucinations. The examiner opined that although "the Veteran does not fully meet the criteria for PTSD, [the Veteran] does have significant psychiatric symptoms. In fact, the [V]eteran does have significant features of PTSD, though not quite enough in number and severity to meet diagnostic criteria. He experiences subjective outbursts, social withdrawal and isolation and diminished activities. Furthermore, it appears that these symptoms developed in response to traumatic stressors." As a result, the February 2009 VA examiner diagnosed the Veteran with an anxiety disorder not otherwise specified (NOS). "[T]he anxiety disorder NOS is a condition that developed secondary to the [V]eteran's military stressors . . . [and the Veteran] exhibits subjective distress and some social impairment which is mild to moderate, but . . . does not exhibit occupational impairment at this time." The examiner further noted that this opinion is "consistent with the conclusion reached by [the August 2007 VA examiner] and also by the mental health provider who assessed the Veteran at the Dallas Ve[t] Center [in January 2008]." The Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein. In evaluating the probative value of medical statements, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). 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 Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In Nieves-Rodriguez, 22 Vet. App. at 295, the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Id. The Court indicated that the claims file "is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim." Id. Evidence in support of the Veteran's claim of record is the May 2008 VA outpatient treatment record that revealed a diagnosis of PTSD; however, the Board finds this record to be of limited probative value. There is no indication that the Veteran's claims file, including service treatment records, other VA outpatient treatment records, and the August 2007 VA examination report, was reviewed. Additionally, the diagnosis is essentially based on the Veteran's oral history. There was no explanation for which findings were deemed consistent with the diagnosis of PTSD, thus it is not clear what evidence this diagnosis is based upon. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions); see also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (The Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of a Veteran's disorder.). Therefore, the Board finds that the August 2007 and February 2009 VA examination reports provide more probative evidence that the Veteran does not have a current diagnosis of PTSD. The Veteran was informed in the February 2007 VCAA letter that he must have evidence of a current disability for his claim on appeal. The Board notes that the Veteran was diagnosed with anxiety by the February 2009 VA examiner and was granted service connection for his anxiety in a March 2010 rating decision. However, as noted above, the August 2007 and February 2009 VA examiners noted that the Veteran did not meet the criteria for PTSD. Thus, the competent and probative medical evidence of record does not show a current diagnosis of PTSD and as such no current disability, so service connection cannot be granted. The Court has held that a condition or injury occurred in-service alone is not enough; there must be a current disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (symptoms alone, without a finding of an underlying disorder, cannot be service connected). The Board has considered the Veteran's contentions as well as the Veteran's wife's statements at the February 2009 VA examination regarding her personal observations of the Veteran's behavior. However, although the Veteran and his wife are competent to describe symptoms observable to a lay person, they are without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Furthermore, the question of causation, in this case, involves a complex medical issue that neither the Veteran nor his wife is competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also acknowledges the Veteran's representative's contention made in an April 2009 informal hearing presentation regarding the request for the claim on appeal to be remanded because the August 2007 VA examiner did not review the Veteran's service treatment records and neither VA examiner addressed the Veteran's diagnosis of PTSD in the May 2008 VA outpatient treatment record. The Board finds that a remand for additional development for the Veteran's claim of service connection for PTSD is not warranted. As noted in the discussion above, the August 2007 VA examiner's opinion was based, in pertinent part, on review of the records, which include the Veteran's claims file, DD Form 214, and March 2006 PDHRA. In addition, the February 2009 VA examiner's opinion was based, in pertinent part, on review of the Veteran's claims file, which included the May 2008 VA outpatient treatment record and the January 2008 Vet Center intake report. Therefore, the Board finds both VA examination reports are adequate and there is no indication that further development is necessary for the claim on appeal. For the reasons stated above, the Board finds that a preponderance of the evidence is against the claim of entitlement to service connection for PTSD. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for PTSD is denied. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the issues of entitlement to service connection for residuals of bilateral ankle and knee disorders. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In the March 2006 PDHRA, the Veteran marked "yes during" for swollen, stiff, or painful joints. The Veteran asserts that service connection is warranted for the claimed residuals of bilateral ankle and knee disorders. In August 2007, the Veteran underwent a VA examination for his claimed bilateral ankle and knee disorders. He reported that while stationed in Iraq, he injured his right ankle while walking to the shower and stepped on the side of a box and now has a sticking type of pain aggravated by daily activities of increased walking or standing. He also reported injuring his left ankle in Iraq while coming out of a truck and has not sought any treatment or made any current complaints of pain in his left ankle. Following the evaluation, the examiner noted normal range of motion for the ankles, no additional limitation with flare-ups, no use of assistive devices, and diagnosed the Veteran with a bilateral ankle sprain with no residuals. Since separation from service, the Veteran has been seeking treatment from a VA outpatient facility for his ankles. A November 2006 record shows the Veteran's complaint of pain in his right ankle since his purported in-service injury, so he was sent for an x-ray examination which revealed no acute bony changes, joint spaces maintained, and soft tissues as unremarkable. A January 2007 record documented no muscle wasting, no swollen or tender joints, full range of motion of the joints, and a diagnosis of chronic right ankle pain. In May 2008, the Veteran denied joint pain but continued his complaint of right ankle pain, and a November 2008 record showed lateral tenderness of the right ankle and the Veteran was again diagnosed with a sprain. Most recently, in March 2009, the Veteran complained of acute exacerbation of chronic right ankle pain once per week and sharp pain when his right ankle is extended and plantar flexed, and the physician continued his diagnosis of a sprain. With regard to the Veteran's knees, he reported to the August 2007 VA examiner no in-service injury to the right knee, but now experiences daily pain which is aggravated by standing or walking for long periods of time. The Veteran also reported that he injured his left knee at eight years old, and the Board notes that a December 2002 service treatment record documents an in-service injury of the left knee which the Veteran was placed on short-term disability. Nonetheless, he has not sought any treatment or made any current complaints of pain in his left knee. Following the evaluation, the examiner noted normal range of motion for both knees, no additional limitation with flare-ups, use of assistive devices, or swelling, and diagnosed the Veteran with a bilateral knee sprain with no residuals. Since separation from service, the Veteran has also been seeking treatment from a VA outpatient facility for his knees. The January 2007 record documented no muscle wasting, no swollen or tender joints, full range of motion of the joints, and a diagnosis of arthralgia knees. An accompanying x-ray report of the Veteran's knees also revealed no evidence of fracture, dislocation, arthritic change, or other abnormality. Most recently, in a March 2008 record, the Veteran denied joint pain. Because VA undertook to provide examinations and medical opinions for the claims on appeal, the Board must ensure that such examination reports and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (noting that a medical opinion must describe the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). In this case, there is no evidence of record that the August 2007 VA examiner reviewed the Veteran's claims file or discussed whether the Veteran's claimed disorders are consistent with his purported in-service injuries. In fact, the VA examiner noted that "[t]here [was] no C file available," and the Veteran has not been afforded a VA examination since the submission of his service treatment records. Therefore, an additional VA examination for the claims on appeal is necessary. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, this matter is REMANDED for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2009, the date of the most recent VA examination of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. Schedule the Veteran for the appropriate VA examination to determine the nature and extent of the Veteran's claimed residuals of bilateral ankle and knee disorders, and determine whether there is a causal relationship between active military service and the claimed disabilities. The claims file must be made available to the examiner for review, to include the Veteran's service treatment records submitted by the Veteran and included in the claims file. The examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. The examiner should identify each currently diagnosed disability of the ankles and knees. The examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently diagnosed ankle and/or knee disorders had their clinical onset in service or are otherwise related to active duty. In addressing this question, the examiner should indicate whether any bilateral ankle or knee disorder diagnosed on examination is consistent with the Veteran's purported in-service injuries in the August 2007 VA examination report and the December 2002 service treatment record. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated and he/she must discuss why an opinion is not possible. 3. Thereafter, the remaining issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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. 2010). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010). 1. Department of Veterans Affairs