Citation Nr: 1237669 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 04-24 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1968 to August 1970, to include service in the Republic of Vietnam from November 1969 to August 1970. His discharge under conditions other than honorable from a period of active service from August 28, 1970, to April 11, 1972, has been found to be a bar to payment of benefits based upon that period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2006, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). In a November 2006 decision the Board, among other things, reopened a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and remanded the issue for additional development. The issue was remanded again in November 2009 and in May 2011. The requested development has been substantially completed. The Board notes that in a February 14, 2008, order the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on February 14, 2008, vacated a November 2006 Board decision as to determinations denying the reopening of claims for cardiovascular disorders and chloracne. These matters were subsequently addressed in an unappealed May 2011 Board decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. An acquired psychiatric disorder was not manifest during active service, a psychosis was not manifest within the first post-service year, and an acquired psychiatric disorder, to include PTSD, is not shown to have developed during the appeal period as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by military service nor may service connection be presumed for psychosis. 38 U.S.C.A. §§ 1112, 1113, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012); 38 C.F.R. § 3.304 (effective before and after July 13, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided to the Veteran in letters dated in September 2004, December 2009, and April 2010. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, and the Veteran's statements and testimony in support of his claim. Although an April 2012 examination report referred to VA treatment records dated September 16, 2011, and February 13, 2012, which are not included in the available record, the examiner's description of the reports indicates that are cumulative of other treatment record. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). A review of the record reveals that in November 2009 the Board remanded the issue on appeal for additional stressor development. The Court has held that a remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Although the specific PTSD stressor development action requested by the Board was not completed, a VA agency of original jurisdiction (AOJ) determination found that the Veteran's alleged stressor of exposure to enemy gunfire, rocket, and mortar attacks was related to a fear of hostile military or terrorist activity which was consistent with the places, types, and circumstances of his service. Therefore, the Board finds the additional development as requested in the November 2009 remand is not required. The Court has held that 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 VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. The Veteran was examined in July 2011 by a VA psychiatrist, shown by publicly available records to be board-certified, as requested by the Board's May 2011 remand. Although an April 2012 addendum report was provided by a VA clinical psychologist providing an additional medical opinion, a sufficient explanation was provided addressing why the clinical psychologist's opinion was adequate as to the matter at issue. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). VA regulations provide that in the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration, or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, are accepted as showing pre-service origin. Congenital or developmental defects, such as personality disorders and mental deficiency, are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. § 3.303(c). VA General Counsel Precedent Opinion has held that service connection may be granted for disease, but not defects, which are congenital, developmental, or familial in origin when the evidence establishes the disorder was incurred in or aggravated by active service. VAOGCPREC 82-90 (Jul. 18, 1990). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Pertinent case law provides, however, that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet the evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). For PTSD claims VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. . . ." 38 C.F.R. § 3.304(f) (effective before and after July 13, 2010). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as the governing criteria for diagnosing PTSD. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (effective from July 13, 2010). In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that VA had adopted the 4th edition of the DSM-IV and noted that the major effect was that the criteria changed from an objective "would evoke ... in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard requiring exposure to a traumatic event and response involving intense fear, helplessness, or horror. The Court further held the sufficiency of a stressor was now a clinical determination for an examining mental health professional. Id. at 140, 141. Certain chronic disabilities, such as psychosis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). Factual Background and Analysis Service treatment records dated during the Veteran's period of service from September 1968 to August 1970 are negative for complaint, treatment, or diagnosis of an acquired psychiatric disorder. Records show he complained of back pain subsequent to a December 1969 jeep accident. An August 1971 report noted he expressed some situational anxiety. Separation examination in October 1971 revealed a normal clinical psychiatric evaluation. A December 1971 certificate of neuropsychiatric examination noted the Veteran was seen for a psychiatric evaluation and provided a diagnosis of severe emotionally unstable personality disorder manifested by chronic disciplinary problems and inability to adjust to service. It was noted that his behavior was not due to emotional problems of a neurotic or psychotic nature, but rather were the result of deeply ingrained defects in the development of his personality, attitudes, and traits of character. There was no evidence of neurosis, psychosis, or organic brain disease. The Veteran was found to be unsuitable for continued military service. In correspondence dated in September 1972 the Veteran requested entitlement to service connection for a nervous condition that was incurred in service. VA treatment records dated in September 1972 noted tension and irritability associated with back pain, with no apparent psychosis. Records dated from March 1973 to June 1973 show the Veteran complained of "rageful" impulses and vague hallucinations. No diagnosis was provided. A diagnosis of schizophrenia was provided in a November 1980 treatment report. A February 1984 report provided diagnoses of schizophrenia and alcohol abuse. A March 1984 examiner noted he was not found to be psychotic and that represented more of a character disorder than a schizophrenic case. A June 1985 medical statement reported the Veteran was receiving treatment for depression. A June 1985 treatment report noted diagnoses of most probable severe personality disorder, chronic alcoholism, and paranoid personality. A June 1987 report noted diagnoses of mixed personality disorder and dysthymic disorder. An August 1988 hospital report noted the Veteran underwent evaluation and observation for PTSD and provided diagnoses of unstable personality and character, behavior disorder. Diagnoses of rule out secondary type dysthymia and rule out borderline and antisocial personality disorders were provided in September 1988. VA examination in January 1991 included diagnoses of paranoid schizophrenia and emotional instability reaction. No opinion as to etiology was provided. VA treatment reports dated in February 1991 noted diagnoses of depressive disorder, dysthymia, and paranoid traits. A September 1997 VA problem list noted a diagnosis of prolonged PTSD onset in 1968. VA treatment records dated in May 1999 noted the Veteran complained of difficulty sleeping, only 30 minutes per night, since active service and that he experienced periodic nightmares, flashbacks, and a quick temper. He reported that he served in combat in Vietnam and witnessed trauma. The examiner's assessment was probable prolonged PTSD. Subsequent treatment reports continued the diagnosis of PTSD. In statements dated in September 2002 the Veteran requested entitlement to service connection for PTSD and paranoid schizophrenia. He stated that he had constant remembrances and recollections of the war in Vietnam. He reported that he experienced nightmares, that he tried to avoid thoughts and feelings about his experiences in Vietnam, and that he had difficulty concentrating. In subsequent statements and testimony provided in support of his claim he reported having been fired upon while traveling the highways in Vietnam in his duties in supply. In a May 2004 statement the Veteran's sister reported that he had been very unstable since he returned from Vietnam. She stated he did not think rationally and that he hardly ever slept. In statements dated in June 2004 A.H. and L.S. noted that had know the Veteran seven and ten years, respectively, and described problems he had with his mental health. VA treatment records dated in February 2005 show the Veteran complained of flashbacks and nightmares from Vietnam. He stated he was having difficulty sleeping, was isolating most of the time, and changed from frustrated to angry. He described his mood as labile. He reported frequent auditory hallucination. The diagnosis was PTSD. A June 2005 VA medical statement noted the Veteran was followed for disorders including PTSD without additional comment as to etiology. Reports dated in May 2007 noted he reported suicidal and homicidal thoughts and Vietnam flashbacks. The examiner noted his mood was irritable and his thought content revealed narcissism. The assessment was significant for PTSD, substance-induced mood disorder, and possible cluster B personality. A subsequent May 2007 report noted he had regular flashbacks with audio and olfactory hallucinations, irritability, decreased concentration, and sleep disturbance. A July 2010 VA report found the Veteran's reported stressors of exposure to enemy gunfire and rocket/mortar attacks related to a fear of hostile military or terrorist activity. The stressors were also found to be consistent with the places, types, and circumstances of his service. On VA examination in August 2010 the Veteran reported that his unit in Vietnam received rocket and mortar attacks every day. The examiner noted the claims file and electronic records were thoroughly reviewed and that, in general, when interviewed the Veteran was very evasive and undetailed in his responses regarding symptoms of PTSD. He described events in service and his symptoms with relative ease and did not appear to be in any acute distress. It was noted that his statements mostly reflected paranoid ideation and extreme isolation from others and the only clear symptom of PTSD ascertained was his report of experiencing nightmares of Vietnam every night. It was further noted that records showed he had at times reported hearing voices, but that he would not provide further details about the frequency or onset of this symptom. He denied delusional thoughts and reported he could not remember when asked about previous suicides attempts. The examiner provided diagnoses of cocaine dependence and personality disorder with antisocial and paranoid traits and found there was really no evidence of PTSD. It was noted that a diagnosis of anxiety disorder was considered, but he was in acute distress during the examination and he smiled inappropriately. His responses on a PTSD checklist (PCL) were not commensurate with his self-report and presentation during the interview. Based upon his behavior and information regarding early family history his presentation was believed to be highly indicative of a pervasive personality disorder that extended back to his childhood and which was not due to his military service. A July 2011 VA examination report provided diagnoses of psychotic disorder, not otherwise specified, alcohol abuse, cocaine abuse, and mixed personality disorder. The examiner noted that based upon the current evaluation the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria. It was further noted that although he had symptoms of PTSD he had a long-standing history of behavioral problems which existed prior to service and accounted for his anger outbursts. His symptoms of hallucinations and paranoia were found to be more consistent with a psychotic disorder and his psychotic disorder was responsible for his symptoms of keeping people at a distance, hypervigilance, trouble falling asleep, and hallucinations. The examiner was uncertain if his psychotic disorder was substance-induced or a primary psychotic disorder such as schizophrenia. The examiner, however, also completed a section of the examination report with a checklist for the "criteria used for establishing the current PTSD diagnosis." Under criterion A it was noted the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and that his response involved intense fear, helplessness, or horror. Under criterion B he had recurrent distressing dreams of the event and he acted or felt as if the traumatic event were recurring. Under criterion C he only demonstrated two of the required three indicators for persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. There was identified as efforts to avoid thoughts, feelings, or conversations associated with the trauma and efforts to avoid activities, places or people that arouse recollections of the trauma. Under criterion D he had difficulty falling or staying asleep, irritability or outbursts of anger, and hypervigilance. Under criterion E the duration of the symptoms in criteria A, B, C, and D was more than one month. Under criterion F the PTSD symptoms described caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. An April 2012 addendum report found, based upon a review of the August 2010 and July 2011 examination findings, the claims file, and VA medical records, that the Veteran's symptoms were not consistent with a diagnosis of PTSD. It was noted that all available data indicated his history of behavioral and interpersonal difficulties dated from his childhood. The examiner noted that treatment notes which listed nightmares and flashbacks related to PTSD included no detail regarding those symptoms, which it was noted alone did not constitute a diagnosis of PTSD. The examiner noted the diagnoses of the July 2011 examination included psychotic disorder, mixed personality disorder, and cocaine abuse and found that based upon a thorough review of all available data it was less likely than not that any of these disorders were a result of a verified event during active service, to include any such disorder manifest during the appeal period which may have resolved. Based upon the evidence of record, the Board finds that an acquired psychiatric disorder was not manifest during active service, that a psychosis was not manifest within the first post-service year, and that an acquired psychiatric disorder, to include PTSD, is not shown to have developed as a result of an established event, injury, or disease during active service. The evidence of record shows that upon neuropsychiatric examination in December 1971 there was no evidence of neurosis, psychosis, or organic brain disease and that a September 1972 VA treatment provider found no apparent psychosis. It is significant to note that applicable regulations provide that personality disorders are not diseases or injuries for VA compensation purposes. The Board finds that based upon a review of the complete record that the August 2010, July 2011, and April 2012 VA opinions are persuasive that the DSV-IV criteria for a diagnosis of PTSD were not met at any time during the appeal period and that his psychotic disorder, mixed personality disorder, and cocaine abuse were unlikely a result of a verified event during active service. The Board notes that "the Court has expressly declined to adopt a 'treating physician rule' which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician." Winsett v. West, 11 Vet. App. 420, 424-25 (1998) (citing Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Williams v. Brown, 4 Vet. App. 270, 273 (1993) ("Nowhere is it provided in law or regulation that opinions by the examining psychiatrists are inherently more persuasive than that of other competent mental health professionals."). The Court has held, however, that "[a] private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, "the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file." Id. The level of training, education, and experience of the person conducting the examination is a factor that, if the Board affords more or less weight to the report because of that reason, must be thoroughly explained in its decision. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996)). Although the evidence of record includes VA treatment records including diagnoses of various acquired psychiatric disorders over many years, the Board finds the opinions of the August 2010, July 2011, and April 2012 VA examiners are persuasive because they were provided based upon thorough and comprehensive examinations of the Veteran and review of the available evidence. The conclusions are supported by adequate rationale. Therefore, the Veteran's claim for entitlement to service connection must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs