Citation Nr: 1240802 Decision Date: 11/29/12 Archive Date: 12/05/12 DOCKET NO. 10-09 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an earlier effective date than August 15, 2009 for entitlement to service connection for posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC. The Veteran testified at a Board hearing at the RO in August 2011 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The Board issued a denial of the Veteran's earlier effective date claim in October 2011. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand in July 2012. The case was returned to the Board for further review. FINDINGS OF FACT 1. On August 15, 2009, the Veteran first met the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV) criteria for PTSD. 2. Prior to August 15, 2009, the weight of the evidence does not show a diagnosis of PTSD that meets the DSM-IV criteria. 3. The Veteran's GAD is not causally or etiologically related to active service. 4. On August 15, 2009, the Veteran's GAD was first shown to be causally and etiologically related to the diagnosis of PTSD. CONCLUSION OF LAW The criteria for an effective date prior to August 15, 2009 for the award of service connection for PTSD and GAD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1). The Veteran's earlier effective date appeal arises from his disagreement with the original grant of service connection in October 2009. Courts have held that once service connection is granted the claim is substantiated and further appealable issues, such as the effective date, are "downstream" issues and therefore, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No further notice is needed under VCAA. At any rate, the Board notes that a March 2006 VCAA letter informed the Veteran about how VA determines an effective date. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for an earlier effective date. The VLJ asked questions to ascertain the onset of the Veteran's disability. The Veteran was assisted at the hearing by an accredited representative from the Vietnam Veterans of America. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an earlier effective date. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Earlier Effective Date Under VA laws and regulations, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if a claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran submitted his claim more than one year after service. When a claim is submitted more than one year after service, the effective date shall be the date of the receipt of the claim or the date entitlement arose, whichever is later. U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Veteran filed his claim in this case on December 30, 2005; however, entitlement to service connection for PTSD and GAD did not arise until after that date. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the DSM-IV. In January 2006, the Veteran's social worker noted the Veteran's stressor history. He found that the Veteran had some nightmares after the service, but doesn't have them so much anymore. The social worker found that the Veteran exhibits some symptoms of PTSD, but that he minimizes the symptoms. The social worker suspected that the Veteran would have a diagnosis of PTSD if he were truthful about his symptoms. During group therapy, the social worker noted some PTSD symptoms again, including difficulty sleeping, but also noted a lack of some PTSD symptoms, for example that he maintained one job for thirty years, which the social worker stated goes against a PTSD evaluation. In May 2006, the Veteran first attended a PTSD consult with his treating physician. The examiner noted his past history and performed a mental status examination. The examiner diagnosed GAD and subthreshold PTSD. The examiner specifically noted that the Veteran does not meet the diagnostic criteria of PTSD with his current history. His current details do not meet diagnostic standards. During the June 2006 VA examination, the examiner reviewed the claims file, provided a thorough history, performed a psychiatric examination, and provided a diagnosis and nexus opinion. The examiner specifically noted that the Veteran did not meet the DSM-IV criteria in his treatment records and does not meet the criteria for a diagnosis of PTSD during this examination. He noted that the way he described the events in service does not meet the criteria of PTSD, additionally, it is more likely than not that the Veteran does not meet the B, C, D, E, or F criteria for PTSD either. The examiner opined that the Veteran did exhibit GAD to include worry about trivial matters and different matters on a day-to-day basis. The examiner noted that this causes his problematic sleep patterns and his difficulty with attention, concentration, and his irritability. The examiner also opined that the Veteran's GAD is not consistent with a nexus for service relation. In a July 2006 treatment record, the treating VA physician noted depression and anxiety and diagnosed subthreshold PTSD. In an August 2006 treatment record, the VA physician noted intrusive thoughts and again diagnosed subthreshold PTSD. In an August 2006 letter, the Veteran's treating VA physician noted that the examiner had seen the Veteran on multiple occasions. The examiner noted that the Veteran does not meet the diagnostic criteria of PTSD with his current history. He was diagnosed with GAD and subthreshold PTSD. The examiner opined that it is as likely as not that the Veteran's present condition could be the result of, or may be related to, his combat service with the U.S. Marine Corps in Vietnam. The examiner noted that the Veteran has problems with anxiety and depression, as well as insomnia and nightmares, which can be exacerbated due to his chronic neuropathies and pain. In January 2007, the Veteran was seen by his treating VA physician. The physician discussed the diagnosis and criteria for PTSD, but did not provide a diagnosis for the Veteran. The examiner provided a psychiatric examination and diagnosed the Veteran with GAD. In June 2007, the Veteran was given a PTSD screening questionnaire. The Veteran's screening was negative noting no nightmares, no avoidance, and no numbness or detachment. The Veteran did admit that he was constantly on guard, watchful, or easily startled. The result was a negative PTSD screen. The Veteran was afforded a VA examination in August 2009. The examiner reviewed the Veteran's records, noted the Veteran's history, and specifically set forth the criteria for a DSM-IV diagnosis of PTSD. The examiner noted that the Veteran had delayed onset of symptoms. He diagnosed the Veteran with chronic PTSD that meets the DSM-IV criteria for a diagnosis of PTSD, as well as GAD and depressive disorder. The examiner opined that it is more likely than not that the Veteran's PTSD was caused by his military service. The GAD and depressive disorder are related to his PTSD. In June 2010, the Veteran's treating physician wrote a letter stating that it is at least as likely as not that the Veteran had PTSD from when he was first evaluated in the clinic. The examiner noted that the Veteran's symptomatology and history date back several years prior to his presentation and he has suffered from the symptoms of an anxiety disorder for years prior to him presenting at the clinic and after thorough assessment of his condition was diagnosed with PTSD. The Board finds that the weight of the evidence does not show a diagnosis of PTSD that meets the DSM-IV criteria prior to August 2009. Additionally, the evidence does not indicate that the Veteran's GAD is directly related to service. The Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a diagnosis, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a diagnosis of PTSD that meets the DMS-IV criteria or a nexus between the Veteran's GAD and service, the Board finds that the etiology of the Veteran's GAD and the specific requirements of a PTSD diagnosis are too complex, issues typically determined by persons with medical training, to lend themselves to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms such as depression or sleep pattern disturbances, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). Regarding the issue of whether the Veteran had PTSD that met the DSM-IV criteria prior to the August 2009 diagnosis, the Board finds that the weight of the evidence is against such a finding. The Veteran attended treatment for several months and clearly indicated some symptoms that could be related to a diagnosis of PTSD. However, PTSD has specific criteria set forth in the DSM-IV. In group therapy, the Veteran's social worker found that the Veteran exhibits some symptoms of PTSD, but also noted a lack of some PTSD symptoms, clearly not providing a diagnosis based on the DSM-IV criteria. In May 2006, the examiner diagnosed subthreshold PTSD and specifically noted that the Veteran does not meet the diagnostic criteria of PTSD with his current history. During the June 2006 VA examination, the examiner specifically noted that the Veteran did not meet the DSM-IV criteria in his treatment records and does not meet the criteria for a diagnosis of PTSD during the examination. He noted that the way he described the events in service does not meet the criteria of PTSD, additionally, it is more likely than not that the Veteran does not meet the B, C, D, E, or F criteria for PTSD either. The Veteran was consistently diagnosed with subthreshold PTSD. In an August 2006 letter, the Veteran's treating VA physician noted that the Veteran does not meet the diagnostic criteria of PTSD with his current history. In January 2007, the physician discussed the diagnosis and criteria for PTSD, but did not provide a diagnosis for the Veteran. In June 2007, the Veteran was given a PTSD screening questionnaire with negative results. The only indication that the Veteran met the DSM-IV criteria prior to the August 2009 examination date is in the form of a letter from the Veteran's treating physician dated June 2010. The physician wrote a letter stating that it is at least as likely as not that the Veteran had PTSD from when he was first evaluated in the clinic. The examiner noted that the Veteran's symptomatology and history date back several years prior to his presentation and he has suffered from the symptoms of an anxiety disorder for years prior to him presenting at the clinic and after thorough assessment of his condition was diagnosed with PTSD. The Board finds this letter to be less probative than the remaining medical evidence. The Board notes that the Veteran's statements to the doctors resulting in a diagnosis of subthreshold PTSD were made during the course of treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). During treatment or contemporaneously with the treatment, multiple examiners determined that the Veteran did not meet the DSM-IV criteria. The June 2010 letter does not indicate any sufficient rationale for the examiner's change of opinion, and was provided solely to assist the Veteran in obtaining VA benefits. The examiner merely recites that the Veteran had experienced depression and anxiety prior to his PTSD diagnosis and arrival at the clinic, which are documented in the treatment records. These symptoms are consistent with the GAD diagnosis that had been provided at the time of examination. Additionally, the examiner does not specifically address the DSM-IV criteria in the June 2010 letter. He simply states that the Veteran did have a diagnosis. At a minimum, the treating physician's statements are internally inconsistent, specifically denying any diagnosis that meets the DSM-IV criteria numerous times and then providing a back-dated diagnosis without discussing the DSM-IV criteria. These inconsistencies force the Board to rely on the other medical evidence of record, which as a whole shows no diagnosis of PTSD in accordance with the DSM-IV criteria prior to August 2009. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Based on the complexity of a diagnosis of PTSD, the inconsistencies between the treating physician's statements, and the remaining medical evidence specifically showing no diagnosis in accordance with DSM-IV criteria, the Board finds that the first credible evidence of a diagnosis of PTSD in accordance with DSM-IV criteria is dated August 15, 2009. Regarding any nexus between service and the Veteran's diagnosed GAD, no medical evidence of record finds a relation between active duty service and the Veteran's GAD. The only medical opinion that provides a positive determination is the August 2006 letter. That letter provides an opinion that it is as likely as not that his present condition could be the result of or may be related to his combat service in Vietnam; however, the Board finds that the use of the phrases "could be the result of" and "may be related to" are so tentative, by their own terms, so as to be of very little probative value. The Court has previously held that an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999); See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the word "could not rule out" was too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (medical opinion expressed only in terms such as "could have been" is not sufficient to reopen a claim of service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran "may have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis" was insufficient to award service connection); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link between chest trauma and restrictive lung disease was "too general and inconclusive" to support an award of service connection). The only other medical evidence of record is the June 2006 VA examination. At that time, the examiner opined that the Veteran's GAD is not consistent with a nexus for service relation. The record includes no other contradictory medical evidence. Based on the lack of a credible nexus opinion, the complexity of the issue, and the June 2006 VA examiner's statement regarding the etiology of the Veteran's GAD, the Board finds the weight of the evidence to be against a finding that GAD is individually related to service. The Board finds that the preponderance of the evidence is against the claim for an earlier effective date. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than August 15, 2009 for service connection for PTSD and GAD is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs