Citation Nr: 1134040 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 06-37 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to February 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in April 2010 for further development. The Board notes that the RO fully complied with the remand directives. FINDING OF FACT The Veteran has not been diagnosed with PTSD attributed to any verified in-service stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303. 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated January 2007. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the Veteran psychiatric examinations in September 2010 and May 2011, obtained medical opinions as to the etiology and severity of the alleged disability, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise. Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychiatric disabilities, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD 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). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and 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). The Board notes that there is no evidence in the record that the Veteran served in combat. As it is not shown that the Veteran engaged in combat, his unsupported assertions of a service stressor are not sufficient to establish the occurrence of such events. Rather, his alleged service stressor must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement for "credible supporting evidence" means that "the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet.App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Suozzi v. Brown, 10. Vet. App. 307, 310-311 (1997) (corroboration of every detail of a claimed stressor, including personal participation, is not required; independent evidence that the incident occurred is sufficient); Pentecost v. Principi, 16 Vet. App. 124 (2002). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. As the Board noted in its April 2004 Remand, the Veteran was on board the USS Lexington in April 1976 when the ship participated in the recovery of a survival capsule from a sinking oil rig. Under the judicial holding in Pentecost, the Board believes that the Veteran's claimed stressor regarding the recovery of a survival capsule from the sinking oil rig has been sufficiently corroborated. The Board also recognized that the record contained both positive and negative evidence of PTSD. A July 2004 PTSD screening reflects that the Veteran reported that he has never experienced a traumatic event. An April 2005 psychiatric assessment reflects that the veteran was diagnosed with alcohol dependence (but not PTSD or any major personality disorder). In January 2006, the Veteran responded to a PTSD screening and was found to be negative for PTSD. In January 2007, the Veteran submitted an annual PTSD screen that came back positive. In November 2008 the Veteran reported a history of PTSD diagnosis based on Navy experiences of having to deal with dead bodies in a rescue mission. He indicated that he still has nightmares and intrusive memories of seeing bodies in the Gulf of Mexico. The examiner diagnosed the Veteran with alcohol withdrawal, alcohol dependence, depression, not otherwise specified related to social stress and alcoholism, partner-relational problems, and a history of PTSD. However, the record subsequently shows mental health treatment through February 2009 with no diagnosis of PTSD. Given the conflicting evidence, the Board remanded the claim with instructions for the Veteran to undergo a psychiatric examination for the purpose of determining whether the Veteran has PTSD and, if so, whether it is related to service. The Board notes that the RO fully complied with the Board's remand directives (as the Veteran underwent two VA examinations). The Veteran underwent a VA examination in September 2010. The examiner reviewed the claims file in conjunction with the examination. The examiner interviewed the Veteran for 4.5 hours before the examination ended at the request of the Veteran. The Veteran's PTSD symptoms included recurrent and distressing recollections of the event (aboard the USS Lexington), including images, thoughts, and perceptions. The examiner found that the disturbance did not cause clinically significant distress or impairment in social, occupational, or other important area of functioning. Upon examination, the examiner noted that the psychological testing with the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) showed that the Veteran over-reports symptoms of emotional disorder. The examiner found that the Veteran's self-report of symptoms is less likely than not to be credible, and therefore not interpretable. The examiner found that since the Veteran's symptoms are not credible (based on objective testing), no statement regarding the frequency, severity, or duration of the symptoms can be made. The Veteran's score on the Response Bias Scale (RBS) was 19. The examiner noted that this was indicative of inadequate effort, implying low credibility of scores on cognitive tests. The examiner also conducted the Post-traumatic checklist-Civilian (PCL-C), the Mental Health Continuum (MHC), the Major Depression Inventory (MDI), Impact of Events Scale - Revised (IES-R), and the Posttraumatic Growth Questionnaire (PTG). The examiner found that the Veteran's scores were not consistent with a diagnosis of PTSD. He further found that the Veteran did not meet the DSM-IV stressor criterion. He diagnosed the Veteran with alcohol dependence, and a personality disorder (not otherwise specified). The examiner found that the Veteran's performance on tests of cognitive abilities are valid and accurately reflect his mental abilities; his report of emotional symptoms of distress are exaggerated and do not represent a candid report of symptoms of emotional disorder. The examiner stated that although the Veteran has a past clinical diagnosis of PTSD, the receipt of treatment is not a diagnostic criterion for PTSD. He pointed out that when the observations and conclusions of mental health treatment providers are used to establish a diagnosis, the patient has presented his history and symptoms to the provider, who generally accepts the veracity of the account. The reason for this is that the basis for successful clinical care is a trusting relationship between provider and patient. Since any attempt by a treatment provider to verify or disconfirm the patient's version of events would diminish trust, the treatment providers rarely attempt to assess the validity of the reported history and symptoms. However, in this case, the objective psychological testing shows that the Veteran over-reports symptoms of emotional disorder. Consequently, the examiner believes that previous clinical diagnoses of PTSD to have been erroneous. The examiner's bases for his conclusions were the Veteran's low military-performance ratings, his in-service diagnosis and treatment for alcohol dependence, his recent hospitalization for alcohol dependence and alcohol withdrawal with homicidal ideation, his presentation at the examination smelling heavily of alcohol, and his exaggerated report of symptoms of emotional disorder on objective psychological testing. These factors give the Veteran low credibility in his presentation of his behavior at the time of the USS Lexington's rescue of the survival capsule, and his presentation of symptoms of PTSD. The Veteran underwent another VA examination in May 2011. The examiner is a board certified psychiatrist who reviewed the entire claims file in conjunction with the examination. The examiner interviewed the Veteran for one hour and forty minutes. The Veteran reported consistent symptoms of PTSD and depression. The Veteran came to the interview with alcohol on his breath. He admitted that he was worried about the examination, and so he drank eight beers before he went to bed the previous night. The Veteran admitted that he was never in a combat area. He reported that his most traumatic incident of service was when he was part of a rescue crew that recovered a survival pod with a number of dead crew members on it. He was responsible for recovering the bodies and putting them into a freezer. He also stated that when the bodies were removed from the freezer, they began thawing. One of the bodies (with a head wound) apparently had blood oozing out of the head wound. The examiner noted that this is not medically consistent with what would happen to a body that had been in the water and subsequently frozen. The Veteran reported another stressor in which he and some of his friends were drinking while on shore leave. One of the men stayed in the hotel room while the others went out partying. When the men returned, they realized that the man who stayed behind had died. The Veteran reported that he sees the man (along with another friend that died in a car accident) as ghosts. The examiner noted that it is not quite clear whether the Veteran experienced a traumatic event significant enough to cause PTSD. The Board has conceded that the Veteran was involved in a rescue while on the USS Lexington. However, the examiner stated that the explanation given by the Veteran regarding the oozing of blood from a head wound, if true, would constitute a substantial traumatic event. However, the Veteran's recounting of the event did not entirely make sense (though the examiner noted that the Veteran's participation in such a rescue was credible). The Veteran reported severe repeated disturbing memories and nightmares, extreme flashbacks, and severe feeling of being upset when something happens that reminds him of his experiences. He reported extreme bodily reactions such as sweating and increased heart rate. The examiner noted that when the Veteran described the incident with the man with the head wound, he appeared to be emotionally upset; however, he showed no outward signs or symptoms of anxiety or uncomfortableness during the remainder of the interview. The Veteran reported a significantly decreased interest in things that used to be important to him. He also reported an extreme lack of being able to feel tenderness, love, or sympathy for others. He stated that he has extreme difficulty falling asleep and staying asleep; and that he has significant outbursts of anger and irritability. He finds it difficult to stay on track when dealing with problems. He reported a lower level of hypervigilance; and he felt he is fairly significantly impacted by hyper reflexive startle reflex. The examiner noted that the Veteran also endorsed symptoms of depression, as well as feelings of hopelessness and helplessness. He reported sleep disturbances, poor appetite, very low energy, hopelessness about his future, and trouble concentrating on things. He denied significant suicidal or homicidal ideation. The examiner did not perform any psychometric testing. However, he reviewed the September 2010 test results and agreed that the results were not consistent with the symptoms reported by the Veteran. The examiner diagnosed the Veteran with alcohol dependence and assigned a Global Assessment of Functioning (GAF) score of 55 (indicating moderate symptoms that result in social and occupational functioning). The GAF score was largely the result of alcohol dependence. The examiner stated that although the Veteran reported signs and symptoms of PTSD, the level of symptoms and the claim that every symptom was at a highly elevated or severe level does not match clinically with the Veteran's presentation. Also, the examiner once again notes that the description of his stressor (the oozing blood out of a previously frozen corpse) did not make any physiological sense. The examiner found that the evidence presented for PTSD was not credible. Therefore, the examiner declined to diagnose the Veteran with PTSD. He stated that the only diagnosis that he can make with reasonable certainty is that of alcohol dependence. The Board finds that a preponderance of the evidence is against a finding that the Veteran has PTSD. The Board recognizes that a January 2007 annual PTSD screen was positive; and that in November 2008, the Veteran was diagnosed with a history of PTSD. However, the Board finds that the probative value of the evidence supporting a diagnosis of PTSD is greatly outweighed by the probative value of the evidence against a finding of PTSD. The Court has held that it is the Board's duty to determine the credibility and weight of evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board may not ignore the opinion of a physician, it is certainly free to discount the credibility of that physician's statement. Sanden v. Derwinski, 2 Vet. App. 97 (1992). Greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence, Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994), and an opinion may be discounted if it materially relies on a layperson's unsupported history as the premise for the opinion. Wood v. Derwinski, 1 Vet. App. 190, 191-192 (1991). The Board notes that the PTSD screen and the November 2008 diagnosis of a history of PTSD are based on the history as reported by the Veteran. The September 2010 examiner's report contained a substantial amount of objective evidence obtained by performing a battery of psychological tests on the Veteran (including the MMPI-2, RBS, PCL-C, MHC, MDI, IES-R, and the PTG). The examiner found that the objective evidence, including the Veteran's scores on the tests, was not consistent with a diagnosis of PTSD. Moreover, the September 2010 examiner provider a thorough rationale for his opinion that fully addressed his reasons for disagreeing with any mental health treatment providers that have assessed the Veteran with PTSD. He notes that treatment providers rarely attempt to assess the validity of the reported history and symptoms, because to do so would convey that the examiner does not trust the patient (which treatment providers are unwilling to do, since it discourages the patient from trusting the examiner and it therefore creates a barrier to successful treatment). However, in this case, the objective psychological testing shows that the Veteran over-reports symptoms of emotional disorder. Consequently, both the September 2010 and May 2011 examiners believe that previous clinical diagnoses of PTSD to have been in error. The Board finds these two medical reports and opinions to be highly persuasive. The Board is compelled to conclude that the Veteran does not suffer from PTSD. Without a current disability, the claim for service connection must fail. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for PTSD must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs