Citation Nr: 1109991 Decision Date: 03/14/11 Archive Date: 03/24/11 DOCKET NO. 09-17 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder. 2. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to October 1961 and from December 1963 to January 1968, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in October 2008 by the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho (RO), denying the Veteran's claim for service connection for posttraumatic stress disorder (PTSD). The Veteran was afforded an RO hearing in January 2010, a transcript of which is of record. No other request for a hearing, including a Board hearing, remains pending at this time. Prior to his filing of a substantive appeal as to the above-captioned issue, the Veteran set forth a request for a Board hearing, but per 38 C.F.R. § 20.703 (2010), that request was rejected as it was untimely. This appeal was developed and adjudicated by the RO as involving only a claim for service connection for PTSD, although the Veteran alleged entitlement to service connection for a mental health condition. He requests that his claim be expanded to include all acquired psychiatric disorders, to include diagnosed entities such as a major depressive disorder, bipolar affective disorder, and generalized anxiety disorder. Pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (although the claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or VA obtains in support of the claim), that request is granted and, as a result, the issues identified on the title page have been modified accordingly. The issue of service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran does not have a diagnosed disability of PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103(A), 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and assist set out in the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished by way of the RO's letters, dated in July and August 2008, to the Veteran. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, full VCAA notice was provided to the Veteran prior to the initial adjudicatory action by the RO in October 2008, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on its merits, but he has argued that there was a deficiency in the accomplishment of the duty to assist. 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); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The record indicates that the Veteran has been provided a VA psychological examination, as well as a review of the record by a "Board of Three" VA psychologists. In addition, records of VA medical treatment and counseling at the Boise Vet Center have been obtained and associated with his VA claims folder. The Veteran avers that, rather than a Board of Three review examination, he should have been examined by a VA psychiatrist to confirm or deny the PTSD diagnosis identified by a social worker and a psychiatrist affiliated with the Boise Vet Center. However, contrary to the Veteran's assertions, the Vet Center social worker has determined only that PTSD scales were diagnostic of PTSD, but that overall the Veteran's PTSD was sub-diagnostic. The only offered diagnosis of PTSD is that set out by a VA psychiatrist associated with the Vet Center; however, there is persuasive evidence identified by the Board of Three psychologists, which substantially discredits the Vet Center's psychiatrist's PTSD diagnosis. That being the case, there is no basis in law or fact denoting any inadequacy of the Board of Three review, or for that matter, any of the other evidence presented. On that basis, further development action relative to the disability herein at issue is not required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). In view of the forgoing, the Board finds that VA has substantially satisfied its duties to notify and assist under the governing law and regulations. Applicable law provides that service connection will be granted if it is shown that the appellant suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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 generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 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). Service connection for PTSD requires a verified stressor unless a veteran engaged in combat and such combat is the alleged stressor. Id. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required inservice stressor where that stressor is related to the Veteran's fear of hostile military or terrorist activity. In addition, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the symptoms are related to the claimed stressor. In such a case and 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 inservice stressor. See 75 Fed. Reg. 39,843 (July 13, 2010). The RO has not to date been afforded the opportunity to adjudicate this matter under the recently finalized regulatory change, but inasmuch as there is no showing of current disability as to PTSD, remand to permit the RO to consider the impact of the regulatory change involving PTSD stressors is unnecessary. Information of record indicates that the Veteran served on active duty in Vietnam and that he engaged in combat with the enemy, based on his receipt of the Army Commendation Medal for Valor. He alleges that his stressors leading to the postservice onset of PTSD were combat-related and that the RO has essentially conceded that fact. However, the primary impediment to a grant of service connection for PTSD in this case is that a preponderance of the competent evidence is against a showing of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. As such, notwithstanding a showing of combat and a combat-related stressor warranting application of 38 U.S.C.A. § 1154(b) (West 2002), that statute does not address the questions of the existence of a current disability or of a nexus between such disability and service, both of which are still required for a grant of service connection for PTSD. 38 C.F.R. § 3.304(f); see Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Available service treatment records, as well as various VA examination and treatment records compiled from 1970 until recently, are wholly negative for any diagnosis of PTSD. The record reflects that the Veteran was first seen at the Boise Vet Center in April 2008, at which time Clinician-Administered Posttraumatic Scale (CAPS) was initiated, a portion of which was positive for PTSD symptoms; the clinical assessment at that time was of PTSD symptoms, as opposed to a diagnosis or assessment of PTSD. Further assessment was thereafter made by the same counselor, T.T., whom the Veteran indicates is a trained social worker, which yielded only a diagnosis of PTSD, sub-diagnostic. No PTSD diagnosis at the Boise Vet Center is otherwise indicated. The Veteran's spouse in her written statement, dated in July 2008, referenced physical and emotional changes she had observed in comparing the Veteran prior to and after his service in Vietnam, to include mood changes, sleeping problems, and nightmares. The Veteran was afforded a VA social and industrial survey in August 2008 and a VA PTSD examination by a VA psychologist in September 2008, the latter of which included CAPS testing and a personality inventory. The September 2008 VA examination did not result in entry of an Axis I diagnosis, with the examining psychologist noting that the Veteran was not reporting significant psychiatric distress, and that his responses on a self-report questionnaire assessing combat-related PTSD was below the recommended cutoff for a PTSD diagnosis. Furthermore, the September 2008 VA examiner concluded that he clearly did not meet the diagnostic criterion for reexperiencing trauma, avoidance, or hypervigilance and his reported symptoms did not appear to have an impact on his occupational, interpersonal, or other functioning. It was the VA examiner's overall opinion that the Veteran "clearly [did] not meet criteria for the diagnosis of PTSD." Included in the record are VA psychiatric evaluation notes compiled in June 2009, August 2009, October 2009, and January 2010 by K.G.K., M.D., a VA psychiatrist, which reflect a diagnosis of PTSD. Such diagnosis was noted in June 2009 to be very likely given reported combat experiences in Vietnam, life impacts, and difficulty in discussing or addressing the foregoing. In order to reconcile the evidence of record and gain further clarity as to the presence or absence of a PTSD diagnosis, the RO arranged for a Board of Three review evaluation by VA psychologists, which was undertaken in December 2009. That panel concluded that the Veteran had been carefully and fully evaluated by T.T. from the Vet Center during 2008 and by the VA psychologist in 2009, but that T.T. never reported a diagnosis of PTSD and K.G.K.'s reports fell well short of the rigor required in definitively ascertaining PTSD status. No adequate evidence, the panel opined, had been presented to counter the September 2009 VA examiner's conclusion that a PTSD diagnosis was not warranted. Considering all available factors, the panel concluded, and the clear weight of the evidence was that the Veteran did not meet the full diagnostic criteria for PTSD, despite manifesting some PTSD symptoms. The Veteran has repeatedly alleged that he has PTSD. He is competent to describe his symptoms and the frequency of their occurrence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, there is no indication in the record that he possesses the necessary medical background and training as to permit him to render a competent psychiatric or psychological diagnosis. Moreover, the only diagnosis of PTSD, as provided by K.G.K., lacks an adequate foundation as to be persuasive in this instance. Thus, in the absence of a showing of a PTSD diagnosis in accord with 38 C.F.R. § 4.125, service connection for PTSD is not in order. In view of the foregoing, the Board must conclude that the overwhelming preponderance of the evidence is against a finding that the Veteran meets all of the criteria for a current diagnosis of PTSD per DSM-IV. As such, no current disability exists. Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the Veteran's claim for service connection for PTSD must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for PTSD is denied. REMAND As indicated above, the record reflects that psychiatric disorders other than PTSD have been diagnosed, to include major depressive disorder, generalized anxiety disorder, and bipolar affective disorder. Pursuant to Clemons v. Shinseki, discussed above, service connection for an acquired psychiatric disorder other than PTSD must also be considered. Personality disorders are not disabilities for VA disability compensation purposes. See 38 C.F.R. § 3.303(c), 4.9 (2010). However, direct service connection is possible for non-PTSD acquired psychiatric disorders that are directly related to military service. Because development and adjudication has yet to be accomplished with respect to the non-PTSD acquired psychiatric disorders, remand is required. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is REMANDED for the following actions: 1. Contact the Veteran in writing for the purpose of notifying him of the information and evidence needed to substantiate his claim for service connection for an acquired psychiatric disorder other than PTSD. Remind him that VA will assist him in obtaining pertinent medical or other data to substantiate his claim in the event that he provides an authorization for the release of any such data. Depending upon the Veteran's response, any and all assistance due him must then be provided by VA. 2. Obtain a complete set of service treatment records for each period of military service of the Veteran for inclusion in his VA claims folder. Efforts to obtain these and any other Federal records must continue until it is determined that the records sought do not exist or that further efforts to obtain same would be futile, and, if it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran and he must then be afforded an opportunity to respond. 3. Obtain pertinent VA treatment records, not already on file, for inclusion in the Veteran's VA claims folder. 4. Thereafter, afford the Veteran a VA psychiatric or psychological examination in order to ascertain the nature and etiology of any currently diagnosed non-PTSD acquired psychiatric disorder. Request that the examiner review the claims file and note whether in fact the claims folder was provided and reviewed. Such examination should entail a complete psychiatric history, a thorough mental status evaluation, and any diagnostic testing deemed necessary by the examiner. All applicable diagnoses should then be fully detailed and, to the extent possible, the examiner should distinguish any diagnosed acquired psychiatric disorder(s) from any diagnosed non-acquired entities, such as a personality disorder. The examiner must then furnish a professional opinion with supporting rationale as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed acquired psychiatric disorder, other than PTSD, began in or is otherwise related to the Veteran's active military service. A complete rationale must be provided for any opinion stated, citing to current clinical findings and/or claims file documents as appropriate. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Lastly, adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. If the decision is adverse to the Veteran in any way, issue the Veteran and his representative a supplemental statement of the case. Provide an appropriate period of time in which they may respond, and then return the appeal to the Board for appellate review. The Veteran need take no action until otherwise notified. He has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn as to the outcome of this matter by the actions herein requested. This claim must be afforded expeditious treatment. 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). _________________________________________________ J. M. MACIEROWSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs