Citation Nr: 1233831	
Decision Date: 09/27/12    Archive Date: 10/09/12

DOCKET NO. 97-31 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Providence, Rhode Island



THE ISSUES

1.  Entitlement to service connection for claimed posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for another innocently acquired psychiatric condition, to include dementia, depression and schizophrenia, to include on a secondary basis.



WITNESS AT HEARING ON APPEAL

C.N.B., M.D




ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to December 1970.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the RO that denied service connection for PTSD and the residuals of a chest injury.

The same decision also denied the Veteran's claim for an evaluation in excess of 60 for the service-connected fistula and a total rating based on individual unemployability (TDIU) by reason of service-connected disability.

The Board initially remanded the case to the RO for further development in March 2000.

In April 2000, the RO granted service connection and assigned a noncompensable evaluation for a dysthymic reaction and generalized anxiety disorder.

During the period of the appeal, the Veteran was diagnosed with schizophrenia and dementia. (See July 2010 VA treatment record and May 2012 VA examination). 

Therefore, the Board will treat this as an original claim and has recharacterized the Veteran's claim as one of service connection for an acquired psychiatric disorder, to include dementia and schizophrenia. Boggs v. Peake, 520 F. 3d 1330 (holding that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury; the two claims must be considered independently); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). 

In December 2002, the Board issued a decision denying service connection for PTSD and a chest injury, a rating in excess of 60 percent for the service-connected fistula, and entitlement to a TDIU rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).

In a July 2003 Order, the Court vacated the 2002 decision and remanded the case for development and readjudication under the Veterans Claims Assistance Act of 2000 (VCAA). The Board remanded the remaining issues to the RO in March 2004 for additional development.

In a separate decision in March 2004, the Board denied the Veteran's Motion that a February 4, 1993 decision of the Board denying a disability rating in excess of 10 percent for the service-connected fistula was not clearly and unmistakably erroneous (CUE).

In October 2005, the RO assigned a TDIU rating and dependents educational assistance (DEA), both effective on January 29, 2004.  The Veteran asserted that earlier effective dates should have been assigned; this claim was denied by the Board in a decision promulgated in May 2008.

A hearing was held before the undersigned Veterans Law Judge in March 2006 in Washington, DC. A transcript has been associated with the claims folder.

In November 2006, the Board remanded the claims of service connection for PTSD and the residuals of a chest injury, as well as the increased rating claim for the service-connected fistula disability for further development and adjudication.

In November 2007, the RO awarded service connection for a disability manifested by a sternum protuberance, as the residual of a chest injury. As such, the matter is no longer in appellate status.

The Board remanded the claims of service connection for PTSD and for an increased rating for the service-connected fistula disability to the RO in May 2008.

In May 2011, the RO assigned an increased 100 percent rating for the service-connected fistula disability, effective on September 9, 2008. The RO incorrectly indicated this was a full grant of the benefits sought on appeal.

In a January 2012 rating decision, the RO assigned an effective date of January 12, 2004 for an evaluation of 100 percent for the service-connected post-operative status, fistula in ano.   

In June 2011 the Veteran's attorney notified the RO that he wished to discontinue his representation of the Veteran due to "professional and ethical considerations." See 38 C.F.R. § 20.608 (2011).

In November 2011, the Board sent the Veteran a letter, advising that he had the right to appoint another representative if he so desired. The Veteran did not respond. The Board assumes under such circumstances that the Veteran wishes to represent himself.  

The issue of service connection for PTSD was remanded in January 2012 for further development.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal other than current treatment records.

The issue of service-connection for an innocently acquired psychiatric condition is being remanded to Regional Office via the Appeals Management Center (AMC) in Washington, DC.

FINDING OF FACT

The Veteran is not shown to have a current diagnosis of PTSD pursuant to the Diagnostic and Statistical Manual (DSM-IV) criteria.


CONCLUSION OF LAW

The Veteran does not have a disability manifested by PTSD due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

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 any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

The Veteran received multiple letters that explained the evidence necessary to substantiate the claim for service connection for a psychiatric disability. The letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). (See VCAA letters dated March 1997, March 2006, December 2006, June 2008, and January 2012). The March 1997 letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With regards to PTSD, the VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39843 (July 13, 2010).  

Although the Veteran did not receive notice of the amended rule until January 2012, the Veteran is not prejudiced by a decision on the merits as he does not have diagnosis of PTSD. 38 C.F.R. § 3.304(f) (3).

VA has a duty to assist Veterans in obtaining evidence necessary to substantiate the claim. The claims file contains service treatment records (STRs), VA treatment records, private treatment records, and VA examinations. The May 2012 examination was thorough in nature and adequate for the purposes of deciding this claim.

The reports reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis and opinion consistent with the evidence of record.

The May 2012 VA examination substantially complied with the Board's prior remand and the record is sufficient for rating purposes. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) ((remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with)). Of significance is that the Veteran has raised questions about the adequacy of the examination. 

Further, the Veteran was provided a hearing and opportunity to testify regarding his claim.  Although not present for the hearing, the Veteran, through his attorney's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. The VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2011) consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. 

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2011).


The Merits of the Appeal

The Veteran asserts that his PTSD is the result of two stressful experiences in service, one where he caught someone stealing important papers and became the target of an investigation. The other incident was when he was riding a bus back to his base on New Year's Eve when he got into a fight and was kicked in the chest, breaking his sternum.

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the preponderance of the evidence is against the claim and it must be denied. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, only where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

      (2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden/Caluza element under 38 C.F.R. § 3.303(b). Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intervening causes. 38 C.F.R. § 3.303(b) (2011). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011).

Personality disorders, which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which was the basis of the service diagnosis, will be accepted as showing pre-service origin. Personality disorders are not diseases or injuries within the meaning of applicable legislation for VA disability compensation purposes. Carpenter v. Brown, 8 Vet. App. 240 (1995); 38 C.F.R. §§ 3.303(c), 4.9 (2011).

The Veteran did not receive any psychiatric treatment during his period of active military service.

The STRs dated in September 1967 indicate the Veteran was seen at that time for complaints of chest pain, among other things. An examination was within normal limits, and no pertinent diagnosis was rendered.

The radiographic studies of the Veteran's chest conducted in December 1968 were entirely within normal limits. In December 1969, the Veteran was seen with a complaint of substernal pain.

On examination, the Veteran's chest was clear to percussion and auscultation. No pertinent diagnosis was noted. Two days later, he was once again seen for a complaint of, among other things, chest pain.

At that time, the Veteran gave a history of chest pain of two years' duration, following his being beaten up in a bar. Noted at the time of evaluation was that the Veteran constantly pushed on his sternum. He stated that he constantly worried about the pain in his chest, thinking that he might have some "broken bones" in his chest. The following day, the Veteran underwent an electrocardiogram, as well as radiographic studies of his ribs, both of which were within normal limits.

A service psychiatric consultation dated in mid-December 1969 was significant for a diagnosis of adult-situational reaction.

Post-service, the Veteran was noted not to have met the full criteria for a diagnosis of PTSD in VA examination in June 1997 and April 2005.

During a June 1997 VA psychiatric examination, the examiner noted that the claims folder was available and had been reviewed. When questioned, the Veteran stated that, while he had been on boats which were stationed in Vietnam waters, he did not see any action. While in service, he was involved in a brawl on a bus, at which time he was kicked in the chest, and sustained a broken sternum. In his opinion, the majority of his problems stemmed from this incident. 

The Veteran complained of recurrent and intrusive recollections of the incident in service when he was brutalized on a bus. The Veteran did not, however, have dreams of this event. Nor did he have anything in the way of real flashbacks. He stated that he experienced no intense psychological distress when exposed to events which symbolized his in-service trauma. Nor had he made any effort to avoid feelings associated with his trauma, or experienced any psychogenic amnesia regarding the trauma. The pertinent diagnoses noted were those of dysthymic reaction and generalized anxiety reaction. 

In a September 2005 addendum, the VA psychiatric examiner stated that the Veteran's depression and anxiety symptoms were most severe in 1997, when he was admitted for inpatient VA psychiatric treatment. However, the depression and anxiety symptoms appeared to have been moderate and would not cause unemployability in most individuals. Both the Veteran's physical impairments and his psychiatric impairment appeared severe enough to separately cause him to be unemployable, although part of the psychiatric impairment appeared to be related to cognitive problems that could not be clearly connected to military service or to other service-connected conditions.

The examiner stated that, if pressed to judge the severity of the [service-connected] depression and anxiety separately from [nonservice-connected] cognitive impairment and personality, the level of depression and anxiety reported by the Veteran would be moderate and would not, by themselves, cause unemployability.

The Veteran's wife and his acquaintance provided statements in May 2005 describing the Veteran's psychiatric symptoms.

The Veteran was afforded a VA examination in July 2008. The examiner diagnosed the Veteran with dementia. The examiner specifically indicated that it was difficult to complete the mental status examination as a result of Veteran's dementia and a possible language barrier and suggested that a new examination be scheduled with an appropriate examiner.

The examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for a diagnosis of PTSD. The symptoms were not consistent with PTSD, and a stressor was not sufficient to meet criterion A for the diagnosis under the DSM-IV.

The Veteran was afforded another VA examination in May 2012. The VA examiner reviewed the claims file and concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. He was diagnosed with dementia not otherwise specified (NOS) and depressive disorder NOS. He stated that the dementia was not service related and that the depression was related to health problems. The Veteran denied having PTSD symptoms and declined recalling any traumatic stressors. The Veteran's wife and niece were interviewed separately and corroborated that the Veteran had been happy and satisfied for at least two years since he was placed on medication.

After reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for PTSD.

First, the record reflects no diagnosis of PTSD. As noted by multiple VA examiners, the Veteran did not meet the criteria for the diagnosis as set forth by DSM-IV. 

The VA examination reported that the health care provider thoroughly reviewed the record and was aware of the Veteran's treatment history as well as his contentions as to why he experienced psychiatric symptoms. 

Further, that opinion was explained and supported.  The Court has held that a medical opinion must contain not only clear conclusions with supporting data, but a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

Absent a showing of a diagnosis of PTSD, service connection must be denied. 

To the extent the Veteran's current symptoms were attributed to a personality disorder, service connection is not warranted because a personality disorder is not a disability for VA disability compensation purposes. See Carpenter v. Brown, 8 Vet. App. 240 (1995); 38 C.F.R. §§ 3.303(c), 4.9. 

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  However, the doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).


ORDER

Service connection for claimed PTSD is denied.


REMAND

In April 2000, the RO granted service connection for a dysthymic reaction and generalized anxiety disorder.  However, as of that time, the Veteran had yet to receive a diagnosis of schizophrenia, depression, and dementia. 

An addendum to the May 2012 VA examination should be obtained (another examination should be afforded if necessary) to determine if dementia, depression, and schizophrenia (and any other psychiatric disability other than PTSD) are related to service, to include his already service-connected psychiatric disabilities.

Finally, to ensure completeness of the record, the RO should obtain all outstanding VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611 (1992).

In a February 1996 VA Report of Contact, a claims adjuster informed the RO that the Veteran had filed a claim for Worker's Compensation benefits for the residuals of head and neck injuries incurred at Electric Boat on December 2, 1986. 

In a statement from the Veteran's employer dated in August 1996, it was noted that the Veteran had been administratively terminated on December 3, 1986. The VA claims file does not include records associated with the Veteran's Worker's Compensation claim which may be pertinent to his VA claims. Those records should be obtained and associated with the claims file.

Accordingly, this remaining matter is REMANDED to the RO for the following action:

1. The RO should take appropriate steps to contact the Veteran in order to ascertain if he has any medical or other evidence pertaining to a psychiatric disability that is not currently of record.  The RO should provide authorizations for the release of any identified records.  All records and/or responses received should be associated with the claims folder.  If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them and describe further action should be taken.

The RO also should obtain information and releases from the Veteran sufficient to retrieve records of his Workman's Compensation claim(s).  The RO should obtain copies of all such records and associate them with the claims folder. If the records are not available, a notation to that effect should be entered in the claims folder.  

2. The RO should arrange for the Veteran's claims folder to be reviewed by the examiner who prepared the May 2012 VA examination report (or a suitable substitute if that examiner is unavailable), for the purpose of preparing an addendum that addresses the nature and likely etiology of schizophrenia, depression and dementia, found to be present.

The claims file, including a copy of this REMAND should be made available to and reviewed by the examiner. All indicated tests and studies should be accomplished, and clinical findings should be reported in detail.

Based on a review of the claims file and the clinical findings on examination, the examiner is requested to offer an opinion as to whether any other innocently acquired psychiatric disability manifested by schizophrenia, depression or dementia as likely as not are secondary to his already service-connected dysthymic reaction, and generalized anxiety disorders.

A complete rationale must be provided for all opinions rendered.  If the examiner(s) finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope for a medical professional conversant in VA practices.  
3. After completing all indicated development, the RO should readjudicate the claim in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. 

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2011).


______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals

Department of Veterans Affairs