Citation Nr: 1123698	
Decision Date: 06/22/11    Archive Date: 06/28/11

DOCKET NO.  10-14 522	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Calvin Hansen, Esq.


ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 2003 to August 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that, in relevant part, denied entitlement to service connection for PTSD.

Initially, the Board notes that it has considered the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  In that regard, the Board recognizes that the Veteran has a current diagnosis of adjustment disorder, with anxiety, depressed mood, and insomnia; however, this disorder has been separately service-connected and a disability rating assigned.  While the Veteran filed a notice of disagreement with respect to the 10 percent rating initially assigned for his adjustment disorder, the claims file does not indicate the Veteran has perfected an appeal with respect to this claim as required pursuant to 38 C.F.R. § 20.302.  As the issue has been separately adjudicated, and as the Veteran has not perfected an appeal as to the initial rating assigned for the adjustment disorder, the issue is not otherwise on appeal.

Subsequent to the February 2010 statement of the case (SSOC), additional medical evidence was added to the claims file, including VA treatment records and a July 2010 VA examination report.  If an SOC or SSOC is prepared before the receipt of further evidence, an SSOC must be issued, as provided in 38 C.F.R. § 19.31 (2010), unless the additional evidence is duplicative or not relevant to the issue(s) on appeal.  38 C.F.R. § 19.37(a) (2010).  In this case, the Board finds that the newly obtained evidence is not pertinent because it is duplicative in the sense that it includes multiple diagnoses of adjustment disorder, but not a diagnosis of PTSD.  As the new evidence does not include or suggest a diagnosis of PTSD, the Board finds a remand for RO consideration of the newly acquired evidence would serve no useful purpose.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided); see also 38 C.F.R. § 19.31(b)(1). Consequently, the Veteran's claim is ready for appellate review.


FINDING OF FACT

The competent medical evidence of record does not establish that the Veteran has a current diagnosis of PTSD.


CONCLUSION OF LAW

Service connection for PTSD is not warranted.  See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, the Veteran's Administration (VA) has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 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) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

The VCAA letter dated in January 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  

The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

In this case, the Veteran has been continuously represented, first by an experienced service organization, and later by an attorney.  Arguments submitted by his representatives have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's VA treatment records are in the file.  Certain service treatment records are in the file.  In that regard, the evidence indicates that the entire service treatment records were provided to VA in approximately April 2006, following the submission of unrelated claims for service connection.  The claims file indicates that some of these documents may be missing.  Despite extensive efforts no additional documents have been obtained from the Veteran's military unit or from other sources.  As such, the Board concludes that any further attempts to obtain the Veteran's service treatment records would be futile.  Private medical records identified by the Veteran have been obtained, to the extent possible.  Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2010).  The Veteran was provided a VA examination for his claimed PTSD in September 2008.  The examiner concluded that the Veteran did not meet all the DSM-IV criteria for a diagnosis of PTSD.  As will be discussed in greater detail below, the examiner took into account the Veteran's reported history, his current symptoms, review of the available private and VA treatment records, and the results of psychiatric examination.  Therefore, the Board finds the examination report to be thorough and complete and sufficient upon which to base a decision with regards to these claims.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2010).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection for certain chronic diseases, including psychoses, will be presumed if they are manifest to a compensable degree within one year following active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010).  However, PTSD is not classified as a psychosis, and service connection for an acquired psychiatric disorder for these disorders may not be granted on a presumptive basis.  

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor.  See 38 C.F.R. § 3.304(f) (2010).

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.  See 38 C.F.R. § 3.304(f)(1) (2010); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2010).  Similarly, if 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 posttraumatic stress disorder 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 the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  See 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg.  41092 (July 15, 2010).

Otherwise, the law requires verification of a claimed stressor.  Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated 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 include service records or other credible evidence that supports and does not contradict the Veteran's testimony.  Doran v. Brown, 6 Vet. App. 283, 289 (1994).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997).

The Veteran contends that he has PTSD as the result of his active duty service.  Specifically, the Veteran reports that during his service in Southwest Asia in 2003 and 2004, including Iraq, he received enemy fire from small arms and mortars while performing his duties in a fuel convoy.

As noted above, some of the Veteran's service treatment records may have been misplaced after their receipt by VA in April 2006.  Attempts to obtain any such missing records from other sources were unsuccessful.  Where "service medical records are presumed destroyed . . . the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened."  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant.  See Russo v. Brown, 9 Vet. App. 46 (1996).

The Board notes that the available service treatment records do not indicate any complaints, treatment, or diagnoses of PTSD or other psychiatric disorder, including at his examinations both prior to and following overseas deployment.  Indeed, the Veteran's post-deployment health assessment indicates that during his deployment he did not feel in great danger of being killed and was not interested in receiving help for stress or emotional problems.  The Veteran denied over the past two weeks: having little interest or pleasure in doing things; feeling down, depressed, or hopeless; having suicidal thoughts or nightmares; avoidance behavior; hypervigilance; or feelings of numbness or detachment.

After service, VA treatment records indicate a diagnosis of adjustment disorder with anxiety from June 2005 by a clinical psychologist, for which the Veteran received ongoing treatment.  

The Veteran was afforded a VA examination for his claimed PTSD in September 2008.  At that time, the examiner, a licensed clinical psychologist, noted review of the claims file and medical records.  The examiner noted that treatment began in 2005 when the Veteran was having relationship problems.  The examiner discussed the most recent treatment record, which included a diagnosis of adjustment disorder.  After psychiatric evaluation, the examiner diagnosed adjustment disorder with anxious mood.  The examiner stated that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD.  Specifically, the examiner concluded that the Veteran met criteria C, D, and E, but did not meet criteria A or B.  The examiner indicated that because the Veteran did not meet all criteria for PTSD, a diagnosis of adjustment disorder with anxious mood was more appropriate.

In February 2009, a physician assistant diagnosed the Veteran with adjustment disorder and signs and symptoms of PTSD.  That same treatment provider, in March 2009, indicated that the diagnosis was solely adjustment disorder.  Multiple other treatment professionals have diagnosed the Veteran with adjustment disorder and none of those individuals diagnosed him with PTSD.

The Veteran was afforded a VA examination for his diagnosed adjustment disorder in December 2009, with the same examiner who conducted the September 2008 VA examination.  The examiner again diagnosed adjustment disorder and did not diagnose PTSD.  

In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Board recognizes the Veteran's sincere belief in his claims and his description of his symptoms, the Board concludes that the greater weight of probative evidence is against finding that the Veteran has a current diagnosis of PTSD.  

In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his psychiatric symptoms.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).   Moreover, the Veteran is competent as a layperson to diagnose simple conditions like a sprained ankle and to report other signs and symptoms associated therewith.  The Veteran is not necessarily competent, however, to attribute his emotional symptoms to a specific underlying psychiatric disorder like PTSD.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  As noted, multiple medical professionals have attributed his symptoms to another psychiatric disorder, namely adjustment disorder.  Although the Board has certainly considered the Veteran's contentions, the Board ultimately affords significantly greater probative weight to the September 2008 VA examiner's opinion and the opinions of multiple other treatment professionals that the Veteran does not meet the criteria for a diagnosis of PTSD.  

The Board has also considered the February 2009 notation, discussed above, that included a diagnosis of adjustment disorder as well as signs and symptoms of PTSD.  The Board does not find this notation particularly probative, however, as the next month and thereafter the same treatment provider omitted any mention of PTSD in the diagnosis.  Moreover, the February 2009 record does not make a formal diagnosis, but merely notes signs and symptoms of PTSD.  Finally, the February 2009 record does not discuss the DSM-IV criteria for a diagnosis of PTSD and whether the Veteran met these criteria.  Given the foregoing, the Board finds the February 2009 notation of signs and symptoms of PTSD of limited probative value and significantly outweighed by the multiple other medical opinions indicating that the Veteran did not meet all the criteria for diagnosis of PTSD and that a diagnosis of adjustment disorder was more appropriate

In short, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for PTSD.  The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for PTSD is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs