Citation Nr: 1100725 Decision Date: 01/06/11 Archive Date: 01/14/11 DOCKET NO. 05-19 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from August 1973 to July 1977. This matter arises to the Board of Veterans' Appeals (Board) from a January 2004-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that in pertinent part, denied service connection for PTSD. In April 2010, the Board remanded the case for development. FINDING OF FACT 1. A diagnosis of PTSD due to a non-combat stressor has been offered. 2. Credible supporting evidence of a non-combat PTSD stressor has been offered. 3. A diagnosis of depression, not otherwise specified (NOS), has been offered. 4. Competent, credible, and persuasive medical evidence dissociates depression, NOS, from active service. CONCLUSIONS OF LAW 1. PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). 2. Depression, NOS, was not incurred in active service, nor is it secondary to service-connected disability. 38 U.S.C.A. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been substantially complied with. Because the outcome is favorable with respect to service connection for PTSD, it appears that VA's duty to assist the Veteran in developing this claim has been satisfied and that VA's duty to provide notice concerning what evidence VA intends to obtain and what evidence the Veteran must submit has been met, and VA's duty to ensure compliance with all remand orders has been satisfied. With respect to service connection for depression, VA must notify and assist the claimant in substantiating the claim. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA provided notice letters in December 2002 and December 2004. A notice letter sent in March 2007 informed the Veteran of the five elements of a service connection claim, as set forth by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board remanded the case since then and a supplemental statement of the case was issued in September 2010. Thus, no unfair prejudice will result from the Board's handling of the claim at this time. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the claim for service connection for depression, all necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private treatment reports. The claimant was afforded a VA compensation examination in June 2010. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection In order to establish service connection for a disability, the evidence must show that it resulted from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the claim may be granted regardless of whether the Veteran served in combat, he need not be afforded this consideration. Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Service connection for PTSD also requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § Sec. 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. If the evidence establishes that the Veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, his lay testimony-alone-may establish the occurrence of the claimed in-service stressor 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 his service. 38 C.F.R. § 3.304(f) (2010); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 38 C.F.R. § 3.310 was amended effective October 10, 2006. The revised § 3.310(b) provides the following: Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The amendment places a burden on the Veteran to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection may be made. Because the claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, as that version favors the Veteran. The Veteran's DD-214 reflects that he served as an aviation mechanic, but does not reflect that he earned a military decoration that suggests participation in combat. The Veteran has not claimed that his stressors occurred in combat. His service treatment reports reflect that he was hospitalized on May 26, 1974, after being beaten-up by six men. He was released to duty on May 29, 1974. His service personnel records reflect that he was placed in custody 7 days in February 2006 pursuant to a non-judicial punishment action, but there is no evidence of being beaten while in the brig. His STRs reflect that he was given a physical examination for the brig and was found fit. In June 2002, the Veteran requested service connection for PTSD. He thought PTSD arose in March 1975. In January 2003, the Veteran reported the fearsome and stressful environment of working on the flight deck of an aircraft carrier, including his recollection of fatalities. He felt that this might have caused PTSD. He submitted VA treatment reports and a VA hospital report. The hospital report notes an admission diagnosis of PTSD on October 8, 2002. A secondary Axis I diagnosis of depression was offered. Substance-induced mood disorder and ethanol abuse were also offered as diagnoses on Axis I. The report notes a history of multiple psychiatric admissions and prescriptions for psychotropic medication. A November 2002 VA mental health report, signed by another psychiatrist, offers assessments of PTSD, depression NOS, substance-induced mood disorder, and ethanol abuse, in that order. The RO denied service connection for PTSD in January 2004. The decision notes that a confirmed diagnosis of PTSD has been offered, but that a claimed stressor could not be corroborated. Social Security Administration records reflect that a disability from working due to a primary diagnosis of chronic anxiety has existed from August 31, 1986. A secondary diagnosis of personality disorder was offered. A November 2004 VA examination report reflects a history of PTSD and depression and notes that the Veteran tried psychotropic medication for such. In November 2004, a VA clinical psychologist examined the Veteran and noted that he currently received psychotropic medications in the form of anti- depressants, benzodiazepines, and anti-psychotics. He had attended PTSD group therapy. He had gone for over four years without a psychiatric hospitalization. The diagnoses were PTSD, dysthymia, narcissistic personality, and alcohol abuse. A September 2006 VA psychiatric consultation report contains an Axis I primary diagnosis of major depression. The secondary diagnosis was chronic PTSD, with substance abuse as a tertiary diagnosis. In October 2006, the Veteran reported that during service aboard an aircraft carrier he feared being sucked into a jet engine- intake. He reported that he began drinking heavily during that time. He stated. "The flight deck is most definitely a combat related experience." He noted that he was placed in the brig for striking his superior. He reported that he dreams of being tortured in the brig. In another October 2006 submission, he reported that while in the brig he was beaten up. In February 2008, the Veteran reported being placed in the brig aboard ship for 21 days and of being beaten while in the brig. In January 2009, he reported that flight deck work was stressful, that there was friction between naval personnel and Marine Corps personnel aboard ship, and that his time in the brig was filled with harassment from the Marine Corps guards. In January 2009, the RO received official records that reflect that the ship was underway on deployment cruises during the times the Veteran reported stressful events aboard the ship. The RO also received additional VA out-patient treatment reports that contain numerous diagnoses of PTSD. A March 2009 VA "Pharmacy Medication MGT Note" reflects, "Patient reported various stressors", but the report itself does not mention what those stressors are. The assessments were adjustment disorder with mixed anxiety and depressed mood, chronic. PTSD was not mentioned. In July 2009, the RO received private medical reports from William Beaumont Hospital. A May 1995 report notes a reported history of PTSD and other mental disorders as early as 1983. In April 2010, the Board remanded the case, requesting that a VA examiner determine whether the Veteran had PTSD due to an in- service assault. The Board requested that the examiner address whether the personnel records demonstrate a decline in performance consistent with an assault. The examiner was directed to comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder found. The requested examination was performed in June 2010. During the examination, the Veteran mentioned having been incarcerated aboard ship for a week for fighting aboard ship. He specifically reported that his stressor was the dangerous working environment and equipment aboard ship. The examiner noted that the Veteran was currently medicated with anti-depressant and anti-anxiety medications. The examiner listed mirtazapine, Citalopram, Valium(r), and Quetiapine as the current medications. The examiner mentioned that the Veteran did not report an "in-service assault" as had been mentioned by other examiners. The examiner concluded that the PTSD diagnostic criteria were not met and that the only Axis I diagnosis was depression, NOS. No other Axis I diagnosis was offered. The examiner dissociated depression, NOS, from active military service and felt that it was caused by substance abuse. Regardless of whether the June 2010 examiner found PTSD, as noted by the RO in its January 2004 rating decision, a confirmed diagnosis of PTSD is of record. In fact, diagnoses of PTSD appear in the record numerous times. Very few mental health providers have not found PTSD. Therefore, the June 2010 VA compensation examination report that finds no PTSD must be weighed against all the reports that do find PTSD. Because PTSD has been competently, credibly, and persuasively diagnosed many times during the appeal period, and because a claimed PTSD stressor, that of exposure to aircraft carrier flight-deck hazards (and, perhaps, of having been beaten up), has been corroborated by credible supporting evidence, the criteria for service connection for PTSD are met. After consideration of all the evidence of record, because a diagnosis of PTSD based on a verified non-combat stressor has been offered numerous times during the appeal period, the Board must grant the claim. Service connection for any other acquired psychiatric disorder is also in question. The recent examiner offered a diagnosis of depression NOS, but dissociated it from active military service. The Board finds this opinion to be based on correct facts and supported by rationale. Therefore, it is persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). A medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board must also address the competency, credibility, and probative value of all lay evidence. 38 U.S.C.A. § 7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). In some circumstances lay evidence may establish a diagnosis or etiology. 38 C.F.R. § 3.159. Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. In this case, the medical opinion does not support service connection for depression, thus, any lay evidence of such is unpersuasive. After considering all the evidence of record, the Board finds that the preponderance of it is against service connection for depression, NOS. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. ORDER Service connection for PTSD is granted. Service connection for Depression, NOS, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs