Citation Nr: 1127111 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 08-37 860 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 RO rating decision that, in pertinent part, denied service connection for a psychiatric disorder (claimed as anxiety and an eating disorder), to include PTSD. In August 2007, the Board remanded this appeal for further development. FINDING OF FACT The preponderance of the evidence does not show that the Veteran currently suffers from a psychiatric disorder, to include PTSD. CONCLUSION OF LAW A psychiatric disorder, to include PTSD, was not incurred in or aggravated by active 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 Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Here, the RO sent correspondence in February 2007, a rating decision in August 2007, a statement of the case in October 2008, correspondence in March 2009, a supplemental statement of the case in April 2009, and a supplemental statement of the case in December 2009. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant. The case was last readjudicated in a May 2011 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has also obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection for a "chronic disease," such as psychoses, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 U.S.C.A. § 3.303(b). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e. under the criteria of DSM-IV]; 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, in the absence of clear and convincing evidence to the contrary, and provided 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. 38 C.F.R. § 3.304(f). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The Veteran claims service connection for a psychiatric disorder, to include PTSD, as a result of his period of service, including alleged stressors in Vietnam. His service personnel records indicate that he was not awarded decorations evidencing combat. Such records show that the Veteran's occupational specialty was listed as a communications specialist. The service personnel records indicate that the Veteran served in Vietnam from January 1970 to February 1971. The Veteran served in Vietnam with Company A, 125th Signal Batallion, 25th Infantry Division, and with Company A, 135th Signal Battalion, 1st Calvary Division. The Veteran has reported various stressors. In a stressor statement received in May 2007, the Veteran reported that while he was with the 125th Signal Battalion, 25th Army Division in July 1970, he was on guard duty on a bunker line, and a sapper was seen beyond the barbed wire. He stated that they were told not to fire because a patrol was out. He reported that a helicopter was dispatched with a searchlight and that it flew about a hundred yards over his bunker and passed overhead several times. He stated that after he returned home, whenever a police helicopter with a searchlight passed over his house, it sent him back to the bunker line in Vietnam. The Veteran also indicated that in July 1970, when he was about 10 kilometers outside the base at Chu Chi, Vietnam, he went along with a courier in a helicopter to verify and witness a signature. He stated that he was seated next to a door gunner and that just a few kilometers outside of the base, they received sniper fire. The Veteran remarked that such incident caused nightmares. In his May 2008 notice of disagreement, the Veteran stated that the incidents he mentioned about the sapper and sniper fire should appear in daily reports. In a statement received in March 2009, the Veteran referred to two incidents that occurred during his service with the 25th Infantry while he was stationed at Chu Chi, Vietnam. He reported that the first incident was while he was stationed on guard duty on a bunker line and a sapper was fired by the Viet Cong. He stated that a helicopter with a searchlight was sent out to find the sapper and that it flew repeatedly directly over his position. The Veteran noted that he didn't know if the sapper was ever found, but that the incident kept repeating itself in his mind after he came home with police helicopter searchlights. He also referred to the incident where he was on a courier helicopter next door to a gunner when a sniper fired upon the helicopter. The Veteran reported similar information in a March 2009 stressor statement. In a July 2010 PTSD Stressor Review Checklist, the RO indicated that the Veteran's stressors were consistent with the places, types, and circumstances of his period of service. The RO also reported that the Veteran's stressors were consistent with his period of service because he served from January 1970 to February 1971 with the 25th Infantry Division, 14th Headquarters Company and the 95th Headquarters Company, which were verified by his personnel file. Therefore, the Veteran's combat stressors are conceded. The Veteran's service treatment records do not show complaints, findings, or diagnoses of any psychiatric problems, including PTSD. Evaluations of the Veteran during that time make no reference to any such disorders. Post-service private treatment records include references to treatment for anxiety and for PTSD. The first post-service evidence of record of any possible psychiatric disorder is in May 1997, many years after the Veteran's period of service. A May 1997 report from Urological Associates of Lancaster, Ltd., noted that the Veteran had a past medical history that was positive for some anxiety and difficulty sleeping since he had been in Vietnam. As to a psychiatric evaluation, it was noted that the Veteran did have a history of anxiety. An April 2000 treatment entry from R. K. Aichele, D.O., related an assessment that included anxiety. It was noted that the Veteran's Buspar would be continued. A July 2000 treatment entry from Dr. Aichele noted that the Veteran reported that he had actually been doing pretty well with his anxiety. A March 2002 report from Dr. Aichele indicated that the Veteran reported that over previous several months, he had been under a lot of stress as a result of his daughter having moved back into the household and causing some problems. The Veteran stated that he was also having some issues with his house and with the death of several relatives. He indicated that he felt as though he needed to go on some kind of mild anxiety medication for a period of time so that he could get things back on track and calm down. The assessment included anxiety. A December 2006 statement from a counselor at Base Camp, Veterans Counseling Services, noted that the Veteran had been treated at that facility beginning in 1993. It was reported that the Veteran was referred to address issues related to PTSD. The counselor indicated that the Veteran reported that he had a number of flashback experiences that had temporarily immobilized him. The counselor stated that the Veteran was seen in an outpatient setting until January 1996 when he was discharged. The counselor commented that their therapeutic goals focused on the reduction of the Veteran's underlying feelings of emotion and rage that were symptomatic of PTSD and were directly related to his experience in Vietnam between January 1970 and January 1971. A September 2010 VA psychiatric examination report noted that the Veteran's claims file was reviewed. The Veteran reported that he was treated from approximately 1972 to 1979 for anxiety by a private physician. He stated that he was prescribed medication which he took for most of the decade of the 1970s. The Veteran indicated that he was not currently being treated for a mental disorder. It was noted that the Veteran served in the Army from 1969 to 1971. As to his military history, the Veteran reported that was exposed to sniper fire while in a helicopter and to a sapper while he was on guard duty. He also reported that his last flashback was in 1990. The Veteran indicated that he was in prison for six and a half months in 1990 for child sexual abuse. He stated that he underwent nine years of counseling and that he had a successful termination. He also reported that he received counseling at Base Camp, Veterans Counseling Services for Vietnam issues in around 1992. The Veteran reported that he was married in 1979 and divorced in 1990 and that he had two children. He stated that he had a good relationship with his children both as children and adults. He reported a history of a suicide attempt when he was ten years old, as well as having suicidal ideation after sexual abuse as a child. The Veteran indicated that his current overall psychosocial functioning status was good and that he had adequate social relationships and a good relationship with his brother who he currently lived with since his divorce in 1990. He indicated that he worked full-time in warehousing for the past fourteen years. The Veteran underwent a psychiatric examination that included a discussion of his PTSD stressors and PTSD symptoms, as well as psychometric testing. The examiner indicated that the Veteran did not meet the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) criteria for a PTSD diagnosis or for any psychiatric diagnosis. The examiner commented that "the Veteran's claimed [stressors] may be at least as likely as not to support a diagnosis of PTSD or other Axis I disorder, however, [the Veteran] did not meet the criteria for an Axis I psychiatric disorder." The examiner reported that his opinion was based upon his review of the Veteran's claims file, his medical records, and a clinical interview with the Veteran. The examiner stated that the Veteran was not presently claiming he was disabled. The examiner indicated that it was therefore his professional opinion that "[the Veteran] was not diagnosed with any psychiatric disorder based upon the lack of symptoms of any disorder both from his past report and his interview today." In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, the determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that a May 1997 report from Urological Associates of Lancaster, Ltd., noted that the Veteran had a past medical history that was positive for some anxiety and difficulty sleeping since he had been in Vietnam. As to a psychiatric evaluation, it was noted that the Veteran did have a history of anxiety. The Board observes that the reference to the Veteran having some anxiety and difficulty sleeping since he had been in Vietnam, was apparently based on the Veteran's statements and was nothing more than a recitation of his belief or claimed history. As such, any repetition of those statements by a doctor reciting a reported medical history, are not probative in linking any present psychiatric disorder with the Veteran's period of service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). Additionally, the Board observes that the May 1997 report from Urological Associates of Lancaster, Ltd., indicated, as to a psychiatric evaluation, that the Veteran did have a history of anxiety. Further, the Board notes that April 2000, July 2000, and March 2002 reports from Dr. Aichele all related assessments that included anxiety. The Board also observes that A December 2006 statement from a counselor at Base Camp, Veterans Counseling Services, noted that the Veteran had been treated at that facility beginning in 1993 and that he was referred to address issues related to PTSD. The counselor indicated that the Veteran reported that he had a number of flashback experiences that had temporarily immobilized him. The counselor stated that the Veteran was seen in an outpatient setting until January 1996 when he was discharged. The counselor commented that their therapeutic goals focused on the reduction of the Veteran's underlying feelings of emotion and rage that were symptomatic of PTSD and were directly related to his experience in Vietnam between January 1970 and January 1971. The Board notes that there is no indication that Dr. Aichele, the examiner pursuant to the May 1997 report from the Urological Associates of Lancaster, Ltd., or the counselor from Base Camp, Veteran's Counseling Services, reviewed the Veteran's claims file. Additionally, the Board observes that although the counselor from Base Camp, Veteran's Counseling Services indicated that the Veteran's underlying feelings of emotion and rage were symptomatic of PTSD, and were directly related to his experiences in Vietnam, he did not actually provide a diagnosis of PTSD or any other psychiatric disorder. The Board further notes that although an examiner can render a current diagnosis based on his examination of a claimant, without a thorough review of the record, his opinion regarding etiology if based on facts reported by the claimant can be no better than the facts alleged by the claimant. See Swann v. Brown, 5 Vet. App. 229 (1993). Additionally, the Board observes that without a review of the claims file in this case, the examiners are unable to review the Veteran's medical history, and thereby provide a fully informed opinion. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these circumstances, the diagnoses of anxiety noted above, as well as the reference to underlying feelings of emotion and rage that were symptomatic of PTSD, are all less probative in this matter. Conversely, the Board observes that the September 2010 VA psychiatric examination report noted that the Veteran's claims file was reviewed by the examiner. The examiner specifically indicated that the Veteran did not meet the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) criteria for a PTSD diagnosis or for any psychiatric diagnosis. The examiner commented that "the Veteran's claimed [stressors] may be at least as likely as not to support a diagnosis of PTSD or other Axis I disorder, however, [the Veteran] did not meet the criteria for an Axis I psychiatric disorder." The examiner reported that his opinion was based upon his review of the Veteran's claims file, his medical records, and a clinical interview with the Veteran. The examiner stated that the Veteran was not presently claiming he was disabled. The examiner indicated that it was therefore his professional opinion that "[the Veteran] was not diagnosed with any psychiatric disorder based upon the lack of symptoms of any disorder both from his past report and his interview today." The Board notes that the examiner, pursuant to the September 2010 VA psychiatric examination, reviewed the Veteran's claims file, discussed his medical history, and provided rationales for his expressed opinions. Therefore, the Board finds that the VA examiner's opinions are the most probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Here, the evidence indicates that the Veteran is not currently diagnosed with PTSD or any to her psychiatric disorder; thus, service connection for a psychiatric disorder, to include PTSD, is not warranted. As the preponderance of the probative medical evidence is against a finding that the Veteran meets the criteria for entitlement to service connection for a psychiatric disorder, to include PTSD, the claim must be denied. The Board has considered the Veteran's assertions, but as a layman, he is not competent to give a medical opinion on the diagnosis or etiology of a condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board observes that the Veteran is competent to report that he had symptoms that he thought were due to a psychiatric disorder, to include PTSD, during his period of service or after service, but he is not competent to provide a medical opinion regarding the diagnosis or the etiology of any such claimed disorder. Thus, the Veteran's lay assertions are not competent or sufficient. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a psychiatric disorder, to include PTSD, is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs