Citation Nr: 1237656	
Decision Date: 11/02/12    Archive Date: 11/09/12

DOCKET NO.  07-35 188	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD).


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The Veteran had active service from May 1968 to December 1969.  

This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  

In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Veterans Appeals (Court) held that a claim for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence.  The Veteran originally filed claims of entitlement to service connection for multiple psychiatric disorders, including an acquired psychiatric disorder, major depression, and PTSD.  As such, the Board recharacterized the issue on appeal as indicated above to include these conditions, which would include all of these problems.  

This case was previously before the Board in August 2009, August 2010, and January 2012, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration.  The Board finds that there has been substantial compliance with the directives of the January 2012 remand, such that an additional remand to comply with such directives is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence.  


FINDINGS OF FACT

1.  The Veteran does not meet the diagnostic criteria for PTSD.   

2.  The preponderance of the evidence is against a finding that the Veteran currently has an acquired psychiatric disability, to include PTSD, related to his military service.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met.  38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Assist and Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

April 2006 and December 2006 letters explained the evidence necessary to substantiate the Veteran's claim of entitlement to service connection, as well as the legal criteria for entitlement to such benefits.  The letters also informed him of his and VA's respective duties for obtaining evidence.  In addition, a March 2006 letter 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.  The unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claim.  Social Security Administration (SSA) records have been obtained.  The record also shows that the Veteran has been examined by VA in connection with his claim, and the Board finds that the examination report is adequate for the purpose of deciding the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. 

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  


Legal Criteria

Service Connection - Generally

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Psychoses are listed as a chronic disease for purposes of presumptive service connection.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3).

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and 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).  

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).  Competent lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1372.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

PTSD

To establish entitlement to service connection for PTSD, in particular, there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (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.  See 38 C.F.R. § 3.304(f).

The evidence necessary to establish the occurrence of a recognizable stressor during service, to support a diagnosis of PTSD, will vary depending upon whether the veteran engaged in combat with the enemy.  Where it is determined, through recognized military citations or other supportive evidence, 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 his service, his lay testimony alone may establish the occurrence of the claimed in-service stressor.  See 38 C.F.R. § 3.304(f).  See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans).  However, where the veteran did not engage in combat or the claimed stressor is noncombat-related, the record must contain service records or other credible sources that corroborate his testimony as to the occurrence of the claimed stressor.  See Moreau v. Brown, 9 Vet. App. 389 (1996); aff'd, 124 F. 3d 228 (Fed. Cir. 1997).

VA's General Counsel has held that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality."  VAOPGCPREC 12-99 (Oct. 18, 1999); 65 Fed. Reg. 6256-6258 (2000).  The General Counsel also indicated that the determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat.  Id.  

Where a determination is made that the veteran did not "engage in combat with the enemy," or that the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's statements or testimony as to the occurrence of the claimed stressor.  See, e.g., West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994).  See also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

The Board notes in this regard that VA recently amended 38 C.F.R. § 3.304 by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) which liberalized the prior requirement for independent corroboration of in-service stressors.  For any appeal which was filed at the Board but not adjudicated before July 13, 2010, as in this case, the revised § 3.304 provides that, in certain limited circumstances, a VA psychiatrist or psychologist's opinion can serve to corroborate a Veteran's alleged in-service stressor where such stressor results in a diagnosis of PTSD.  See 75 Fed. Reg. 39843 (July 13, 2010) as amended by 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective date of the revised § 3.304 to July 13, 2010).  

In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the Board of its obligations to assess the credibility and probative value of the other evidence."  Also in Doran (and in West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994) and Zarycki v. Brown, 6 Vet. App. 91, 98 (1993)), the Court cited a provision of the VA ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1), which since has been revised as to "Evidence of Stressors in Service" to read, in pertinent part, ... "[C]orroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources."  Since the M21-1 October 1995 revision, the Court has held that the requirement in 38 C.F.R. § 3.304(f) for "credible supporting evidence" generally means that the "appellant's testimony, by itself, cannot establish the occurrence of a noncombat stressor."  See Moreau, 9 Vet. App. at 389-395 (1996); Cohen 10 Vet. App. at 128.  See also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).

There are exceptions to this general rule - including when the claim is predicated on an alleged personal assault.  In these limited situations, evidence from sources other than the veteran's service records may be used to corroborate the veteran's account of the stressor incident, such as:  records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  Examples of behavior changes may constitute credible evidence of a stressor, including:  a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  VA will not deny a PTSD claim based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.  VA may submit any evidence to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.  See 38 C.F.R. § 3.304(f).

It equally deserves mentioning that, in cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b).  See YR v. West, 11 Vet. App. 393, 399 (1998).  See also Patton v. West, 12 Vet. App. 272, 279-280 (1999).

Analysis

Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD.

The Veteran's available service treatment records do not show any evidence of treatment for or diagnosis of any psychiatric disability, to include PTSD.  The Veteran reported experiencing depression or excessive worry on his August 1969 Report of Medical History, but the contemporaneous psychiatric examination was normal.  Further, the reviewing doctor stated that there was nothing significant in the subjective history.  See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation ... .").  

An October 2003 private psychiatric evaluation, associated with the Veteran's Social Security Administration records, indicate that the Veteran was a poor historian.  The Veteran reported that he stopped working in 1995 due to personnel difficulties and work-related stress.  The Veteran also reported that he was in the Army, but stated that he left due to "politics" and that he first sought psychiatric treatment in 1985, when he first took leave from his employer due to depression, anger, and anxiety.  Following a mental status examination, psychological testing, and neuropsychological screening, the Veteran was assessed as having borderline mental functioning, with chronic personality related difficulties, which led to an angry depression over what the Veteran felt was an unfair termination.  The diagnosis was recurrent major depressive disorder.  

Social Security disability benefits were awarded for neck and back pain as the primary diagnosis and recurrent major depression as the secondary diagnosis, effective October 2003.

The Veteran was afforded a VA examination in November 2010.  According to that examination report, the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD as the Veteran did not have sufficient avoidance symptoms, arousal symptoms, or re-experiencing; the VA examiner also found that the Veteran's anxiety symptoms were insufficient to meet the criteria for an anxiety disorder.  The Veteran reported experiencing poor self-esteem, insomnia and anxiety unconnected to any particular stimuli, depressive symptoms related to his military service, and depression, anxiety, and anger related to his treatment at work.  Mental status examination was negative for impaired thought processes or communication, delusions and hallucinations, inappropriate behavior, suicidal or homicidal ideation, obsessive behavior, panic attacks, or impaired impulse control; the Veteran was oriented, had good memory, normal speech, and normal affect and cognition.  The diagnosis was depressive disorder.   The VA examiner noted that although the Veteran reported depressive symptoms related to events during his 2 months service in Vietnam, the Veteran returned to the US to fulfill his military obligations without incident, and there was no further record of mental health diagnosis or treatment in his service or thereafter until 1985, wherein he sought psychiatric assistance due to work-related issues.  

Another VA evaluation was provided in February 2012.  Following a review of the Veteran's November 2010 VA examination and the Veteran's claims file, the VA examiner found that, although the Veteran's depressive symptoms meet the DSM-IV criteria for a depressive disorder, these symptoms are not likely caused by or the result of the Veteran's service, including his reported in-service experiences; the VA examiner found that the Veteran's depression is more likely connected to the Veteran's employment experiences following his military service, and after he discontinued his employment.  The VA examiner noted the Veteran's purported personal assault stressor events, but points out that the Veteran did not seek any mental health treatment during service.  The VA examiner also notes that the Veteran has been inconsistent in his statements of events in service; of note, the VA examiner pointed out that the Veteran did not experience any combat events, although the Veteran reported experiencing combat to his treating provider.  The VA examiner again noted that the Veteran's military service was completed without further incident after the alleged events, but that the Veteran experienced significant stressful events after his military service in his employment and home life, such that he sought mental health treatment, and that the Veteran has been treated for chronic pain for many years.  The VA examiner further noted that the Veteran did not begin to seek mental health assistance until 1985 and that all mental health treatment was in response to work-related stressors and his chronic pain.   

The Veteran does not meet the diagnostic criteria for a diagnosis of PTSD.  In particular, the November 2010 and February 2012 VA examiners found that the Veteran did not meet the diagnostic criteria for PTSD.  Neither VA examiner found that the Veteran met the stressor criteria for PTSD under DSM-IV, or that he had symptoms of PTSD; as such he did not meet the diagnostic criteria.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability.").  

Nevertheless, the November 2010 and February 2012 VA examinations concluded with diagnoses of depressive disorder.  However, both VA examination reports noted the examiner's opinion that the Veteran's depressive disorder did not have any relationship whatsoever to his military service.  In support of this opinion, the VA examiners noted that there was no psychiatric treatment during service, that there was no temporal relationship between the depressive disorder and the Veteran's military service, as the Veteran started receiving treatment for this condition in 1985, approximately 16 years after his discharge from military service, in response to stressful life events related to his post-service employment and chronic pain.  

Likewise, the February 2012 VA examiner found that the Veteran's statements are not always consistent (at some points referring to the assault, at other points claiming combat experience, at other points claiming seeing bodies in Vietnam) and referring to service events unconfirmed by the evidence of record.  Further, his treatment record cite primarily to other problems that have nothing to do with his military service, including a long prior history of employment problems.  While the Board does not doubt the Veteran's current belief that his symptoms are the result, to some degree, of service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections.  Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports events in service.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.) 

The Veteran has not shown that he has the expertise required to diagnose an acquired psychiatric disorder, including depression and PTSD, and also link such a disability to his military service.  While the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record showing that the Veteran does not currently have PTSD, and that the Veteran's depressive disorder is not attributable to active service.  A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). .

In rendering a decision on appeal, however, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  The November 2010 and February 2012 VA examination reports must be given great probative weight because the opinions were based on a review of the entire record and full examination, as well as accompanied by an explanation of the rationale.  The VA examination reports concluded, with a clear basis and rationale, that there was no evidence that the Veteran has PTSD and that there is no evidence that his depressive disorder is related to the Veteran's military service.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion).  Thus, there currently is no persuasive medical nexus evidence of record indicating the Veteran developed an acquired psychiatric disorder, including PTSD, during or as a result of his service in the military.  See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole).  

As there is a preponderance of evidence against his claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


ORDER

Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied.



____________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs