Citation Nr: 1112131 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 06-38 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. McGuire, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1973. This matter is before the Board of Veterans' Appeals (Board) following a November 2009 Board remand. It was originally on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The case has since been transferred to the RO in Louisville, Kentucky. In its November 2009 remand, the Board remanded the issues of entitlement to service connection for hearing loss and tinnitus for further development. In a November 2010 rating decision, the RO granted service connection for both of these claims. As such, they are no longer before the Board for appellate review. The Board notes that the Veteran requested a Board hearing in his December 2006 VA Form 9. In a June 2007 correspondence, he cancelled the hearing request. There is no outstanding hearing request. The Veteran originally claimed entitlement to service connection for PTSD, anxiety and depression; the RO addressed the issue as entitlement to service connection for PTSD only in its September 2005 rating decision. While on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of filed claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. A review of the claims file shows that the Veteran has been diagnosed with depression and anxiety disorder. The Board therefore finds that the Veteran's psychiatric claims are properly characterized broadly as a single claim of service connection for an acquired psychiatric disorder, to include PTSD, depression and anxiety disorder. FINDINGS OF FACT 1. The evidence does not show that the Veteran is currently diagnosed with PTSD. 2. An acquired psychiatric disorder, other than PTSD, is not shown to have developed as a result of an established event, injury, or disease during a period of active military service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior Board Remand In November 2009, the Board remanded this claim for the following: (1) to provide notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA); (2) to ask the Veteran to provide any outstanding psychiatric treatment records and to obtain any identified records; (3) to give the Veteran an opportunity to provide any additional stressor information; (4) to forward a copy of the Veteran's DD Form 214, together with the stressor information, to the U.S. Army and Joint Services Records Research Center (JSRRC) for an attempt at stressor verification; and (5) if a stressor is established, to afford the Veteran a VA examination and opinion. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). When remand orders are not complied with, the Board must ensure compliance. However, only substantial compliance, not strict compliance, is necessary. D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran was sent VCAA-compliant notice in January 2010. In that letter, the RO/AMC requested that the Veteran submit any outstanding treatment records. The letter also included a request for stressor information. The RO/AMC sent a second request for stressor information in February 2010. The RO/AMC determined that a particular stressor had been verified and afforded the Veteran a VA examination in April 2010. In light of these actions, the Board finds that there has been substantial compliance with its remand orders. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(a)-(c). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board finds that the requirements of the VCAA have been met and that VA has no further duty prior to Board adjudication. The RO originally provided VCAA notice to the Veteran in correspondence dated in May 2005. In that letter, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The RO advised the Veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the Veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the Veteran and which portion VA would attempt to obtain on behalf of the Veteran. The RO sent a similar notice letter in January 2010. In the correspondence dated in January 2010, the RO also informed the Veteran that when service connection is granted, a disability rating and effective date of the award is assigned. The RO explained how the disability rating and effective date are determined. Although the RO did not provide fully compliant notice until after initial adjudication of the claim, it readjudicated the claim and issued a supplemental statement of the case in November 2010. The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board finds that in issuing this letter, the RO has satisfied the requirements of Dingess/Hartman. The scope of VA's duty to assist will depend on the facts and circumstances of an individual case, but typically, the duty to assist requires VA to obtain relevant records from federal agencies, to make reasonable efforts to obtain relevant records not in the custody of federal agencies, and in certain circumstances, to provide a medical examination or obtain a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has satisfied VA's duty to assist. The RO obtained the Veteran's service treatment records and VA medical center (VAMC) treatment records. The RO verified one of the Veteran's PTSD stressors. The Veteran received a VA psychiatric examination in April 2010. In that regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is more than adequate, as it is predicated on a full reading of the medical records in the Veteran's claims file and an examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4). The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). 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). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. The burden typically cannot be met by lay testimony because laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For service connection to be awarded for PTSD, the record must show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-serice stressor. 38 C.F.R. § 3.304(f). The Board notes that the regulations with respect to service connection for PTSD were recently revised, which eliminated the requirement for corroborating the claimed in-service stressor in certain circumstances. 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39,843 (July 13, 2010). Here, the Veteran's stressor of unloading body bags has been conceded. However, as discussed in detail below, the Board concludes that the preponderance of the evidence shows that the Veteran does not have a diagnosis of PTSD based on his clinical symptoms. Thus, application of the new regulation would not impact this case, as the Veteran's stressor is not disputed. When an approximate balance of positive and negative evidence regarding the merits of a claim exists, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b). Analysis The Veteran claims that experiences in the Republic of Vietnam caused his current psychiatric problems. The Veteran described the events that he considers to be the precipitating causes of his claimed PTSD in a December 2004 VA outpatient treatment record. While the Veteran's primary duty was loading and unloading mail, he also unloaded body bags on occasion. He reported picking up a body bag that only weighed 20 pounds, knowing it was supposed to contain an entire man. In his January 2005 claim, he asserted that he was exposed to death and destruction, to include having to pick up dead bodies. In the December 2004 VA treatment note, the Veteran also described a post-service incident which occurred on his return from Vietnam, where several protesters yelled epithets and threw a potato at him. He felt that these events had a tremendous impact on his life. In a March 2010 memorandum, the RO explained that the stressor of unloading dead bodies in body bags from airplanes in Tan Son Not Air Force Base in Saigon, Vietnam from April 1970 to April 1971 had been verified. The Veteran's personnel file shows that he was an air cargo specialist at Tan Son Not Air Force Base in Vietnam from April 15, 1970. A review of the records in the RO Share Drive showed that in April 1970, an aircraft crashed due to unknown causes shortly after takeoff approximately two miles west of the air base. The aircraft was destroyed, and six personnel were killed in the crash. As the Veteran's stressor has been verified, the case turns on whether the Veteran has a current diagnosis of PTSD. There is conflicting evidence on the issue. The evidence in favor of a diagnosis includes a December 2004 VAMC Agent Orange examination report, which shows a tentative diagnosis of PTSD. In a December 2004 VAMC psychiatry consultation note, the Veteran reported that he had recently been screened for PTSD during a VA Agent Orange examination. The Veteran reported that ever since he was in Vietnam, he has experienced poor sleep, sadness, survivor guilt, suicidal ideation. The VA physician diagnosed the Veteran with PTSD and alcohol abuse. A January 2005 VA psychiatry note shows that the Veteran sought treatment for his December 2004 diagnoses of PTSD and alcohol abuse. A March 2005 VA mental health center medication review note shows that the Veteran was scheduled for a 20 to 30 minute psychotherapy appointment following an appointment in January 2005, when the Veteran was found to have PTSD and alcohol abuse. Again, this diagnosis was based on the assessment conducted in December 2004. A May 2005 VAMC psychiatry note shows that the Veteran sought treatment for his diagnoses of PTSD and alcohol abuse. In sum, the only diagnosis of PTSD based on a psychiatric assessment occurred in December 2004. Subsequent to that, the Veteran received treatment for this diagnosis on at least three occasions. During the March 2005 VA mental health center medication review discussed above, the psychiatrist diagnosed the Veteran with depression, which was likely related to alcohol dependence. The Veteran did not meet the criteria for PTSD at that time. The Veteran underwent a VA examination in June 2005. The VA examiner reviewed the electronic record and the claims file, noting the conflicting diagnostic conclusions. After a thorough evaluation, which included a discussion of the various PTSD criteria, the examiner concluded that the Veteran did not meet the criteria for PTSD. Based on self-report, the Veteran arguably met Criteria A, but the magnitude of the stressor that he reported was extremely mild. The Veteran reported frequent Cluster B symptoms. However, the examiner noted that the Veteran purposefully surrounds himself in his garage with reminders of Vietnam. It was difficult to confirm the intense psychological distress, as it was not so distressing that he minimizes exposure. The VA examiner concluded that, given the mild stressor, the Veteran's report of frequent Cluster B symptoms seemed dubious. The Veteran did not meet Cluster C or D criteria. The examiner noted that the Veteran's descriptions suggested that there was not significant distress or impairment in social, occupational or other important areas of functioning related to his military experiences. When queried about depressed mood, the Veteran stated that he was only sad about Vietnam, and nothing else bothered him. The examiner noted that he described himself as "laid back," although he filed for an anxiety condition. The Veteran reported having difficulties with crowds of people but stated that he recently attended a function at an arena, which he enjoyed. He endorsed suicidal ideation when he has had too much to drink. The examiner stated that the Veteran has a longstanding substance abuse pattern that does not meet the criteria for PTSD. At best, he could be described as meeting the criteria for anxiety disorder, but even this was mild. He met the criteria for substance abuse, and the examiner found it likely that any mood dysregulation is more centrally related to alcohol usage. Sleep difficulties also appeared to be related to alcohol usage. Part of the Veteran's denial about the significance of his substance abuse is responsible for his endorsement of PTSD symptoms. It was also likely that the Veteran had personality disorder features, given his presentation. The examiner diagnosed alcohol dependence/alcohol abuse and substance induced mood disorder on Axis I and rule out personality disorder not otherwise specified (NOS) with histrionic features on Axis II. The Veteran received another VA examination in April 2010. The examiner reviewed the claims file, the medical record and the Board remand. The examiner determined that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD. He stated that the Veteran met the DSM-IV stressor criterion, but it was mild. He attributed the Veteran's symptoms to his Axis I diagnosis of alcohol abuse; there was no evidence that the alcohol abuse was related to service. The examiner noted that the Veteran appeared very high functioning and was doing better than during the 2005 compensation and pension examination. The above evidence shows that there was one diagnosis of PTSD in December 2004, but two separate compensation and pension examiners determined that the Veteran did not meet the DSM-IV criteria for PTSD. The Board affords these evaluations greater probative weight, as the examiners based their diagnoses on the presence or absence of DSM-IV criteria. See 38 C.F.R. § 4.125(a). The VA examiners reviewed the Veteran's claims file and pertinent medical history and systematically discussed whether the Veteran met each PTSD criterion. On the contrary, the VA psychiatrist did not review the claims file before rendering his diagnosis in December 2004. Further, while he did elicit a detailed history from the Veteran, the diagnosis was not based on the DSM-IV criteria for PTSD. As such, the Board affords this diagnosis little probative weight. The Board has considered the Veteran's repeated assertions that he currently suffers from PTSD. However, as the Veteran is a layperson, he is not shown to have the requisite medical expertise to render a competent diagnosis of PTSD. Grottveit v. Brown, 5 Vet. App. 91 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). There are circumstances where lay evidence may be competent and sufficient to establish a diagnosis or medical etiology of a condition. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, however, clinical testing and expertise are required to determine the presence of PTSD. The Veteran's statements offered in support of his claim are not competent medical evidence and do not serve to establish that PTSD was incurred in service. Thus, his assertions are afforded no probative value. Accordingly, the preponderance of the medical evidence of record does not show a diagnosis of PTSD, and the only nexus opinion of record found that the Veteran's diagnosed alcohol abuse was not causally linked to his active military service. None of the Veteran's other psychiatric diagnoses have been linked to service. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim, and service connection for an acquired psychiatric disorder is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs