Citation Nr: 1300350	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  09-38 899	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

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




ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel



INTRODUCTION

The Veteran had active military service from September 1951 to September 1953, so during the Korean Conflict.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection specifically for PTSD.  Since, however, evidence in the file indicates the Veteran has a cognitive disorder, the Board has recharacterized his claim to account for this additional diagnosis.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  In Clemons, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  The Clemons Court found that, where a Veteran's claim identifies PTSD, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.

In December 2011, because of looming uncertainties over whether the Veteran satisfied the DSM-IV criteria for a diagnosis of PTSD and/or other mental illness, including especially a cognitive disorder, and because it also was uncertain whether any current psychiatric disorder, regardless of the diagnosis, was related or attributable to his military service, the Board remanded his claim to the RO via the Appeals Management Center (AMC) in Washington, DC, to have him undergo another VA compensation examination to assist in making these necessary determinations.


To this end, a VA psychiatrist examined the Veteran in January 2012 and provided the requested medical opinions.  The opinions are responsive to these determinative issues of the appropriate diagnosis and concerning whether there is any relationship or correlation between this diagnosis and the Veteran's military service.  Hence, there was compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating a Veteran is entitled, as a matter of law, to compliance with a remand directive, and that the Board itself commits error in failing to ensure this compliance).

In August 2012, after issuance of the most recent July 2012 supplemental statement of the case (SSOC), the Veteran submitted an additional statement along with a copy of selected regulations from the Puerto Rico Mental Health Code of 2000.  There was no accompanying waiver indicating he wanted the Board, rather than the RO/AMC, to initially consider this additional evidence.  See 38 C.F.R. §§ 19.31, 20.800, 20.1304.  So, in November 2012, the Board sent him a letter explaining that he could have the RO consider this evidence in the first instance or alternatively waive this right and allow the Board to initially consider this evidence.  In his response later in November 2012, which the Board received in December 2012, he waived his right to have his claim remanded (sent back) to the RO, as the Agency of Original Jurisdiction (AOJ), to initially consider this additional evidence and address it in another SSOC.  He also acknowledged that the Board may, in considering this newly submitted evidence in the first instance, deny his appeal.  He asked to please proceed with the adjudication of his appeal, so the Board is doing so immediately.

The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2).



FINDINGS OF FACT

1.  The Veteran's service treatment records (STRs) show no indication of symptoms suggestive of a cognitive disorder or a stress-related mental illness, recognizing that VA did not adopt the PTSD nomenclature until 1980 or thereabouts, so not until well after his military service already had ended in 1953.

2.  The most probative medical and other evidence of record also does not establish he satisfies the DSM-IV criteria for a current diagnosis of PTSD.

3.  As well, the weight of the medical and other evidence of record does not alternatively show his cognitive disorder is related or attributable to his military service, including to any incident during his combat in the Korean Conflict.


CONCLUSION OF LAW

An acquired psychiatric disorder, including PTSD and cognitive disorder, was not incurred in or aggravated by the Veteran's active military service.  38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).

These notice requirements apply to all elements of the claim:  (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating and (5) effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In this case, a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in July 2008, prior to initially adjudicating his claim in the September 2008 decision at issue, so in the preferred sequence.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  The letter informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence.  The letter also complied with Dingess by, as well, discussing the "downstream" disability rating and effective date elements of the claim.  So he has received all required VCAA notice.  Moreover, he has not alleged any VCAA notice error.  As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the pleading party, he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claim.  Thus, absent this pleading or showing, the duty to notify has been satisfied.

VA also has satisfied its duty to assist him with this claim by obtaining all potentially relevant evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO and AMC obtained his STRs, VA outpatient records, and the reports of his VA compensation examinations.  His STRs include the reports of his enlistment and discharge examinations.  The National Personnel Records Center (NPRC), responding to a request for information from VA, indicated in August 2008 that some STRs may have been damaged or destroyed in the 1973 fire at the NPRC.  The NPRC is a military records repository.  However, the NPRC provided copies of records dated in 1952 and 1958 (so from both during the Veteran's time on active duty and concerning his subsequent service in the National Guard), as well as abstracts obtained from the Surgeon General's Office (SGO), though some of his other STRs may be unavailable.

In a case, as here, in which some of the a claimant's STRs may be unavailable through no fault of his, there is a heightened obligation for VA to provide reasons or bases for any adverse decision rendered without these records and to carefully consider applying the benefit-of-the-doubt doctrine.  See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which STRs are presumed destroyed includes the obligation to search for alternative records).

But missing records concerning the Veteran's service, while indeed unfortunate, do not, alone, obviate the need for him to still have medical nexus evidence supporting his claim by suggesting a correlation between his currently alleged condition and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, supra.  In other words, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).

The Board also had the Veteran undergo another VA compensation examination.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).  And, as already alluded to, the examiner both clarified all present diagnoses and provided the necessary comment on their etiology, including especially in terms of whether they are related or attributable to the Veteran's military service versus other factors or causes.  So in having him examined for the opinion on these determinative issues, there was compliance with this remand directive in further developing this claim.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The Board therefore finds that no further assistance with this claim is required.

Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

II.  General Statutes, Regulations and Case Law Governing Claims for Service Connection

The Veteran attributes his psychiatric disorder, whatever the diagnosis, to his military service - and especially to his experiences in combat during the Korean Conflict.

In general, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Certain diseases, such as psychoses, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  For the purposes of this presumption, a "psychosis" includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.  38 C.F.R. § 3.384.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d).

But if chronicity of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating:  (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).

For the showing of chronic disease in service, or within a presumptive period per § 3.307, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Subsequent manifestations of the same disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.

Evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation.  Savage v. Gober, 10 Vet. App. 494-97.  In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Id.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh the testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  The Veteran is competent to report on things he can observe and feel through the senses.  See Layno.  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, however, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).


In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2011).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence also is generally, though, as mentioned, not always, required to associate the claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

But as specifically concerning a claim for service connection for PTSD, there must be:  (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).

A diagnosis of PTSD need only be in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA compensation purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  See 38 C.F.R. § 3.304(f).  Mental disorders are evaluated under 38 C.F.R. § 4.130.  The DSM-IV provides guidance for the nomenclature employed in this regulation.  The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD.  The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror).  Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone."  Cohen v. Brown, 10 Vet. App. 128, 140-141 (1997).

Also, according to the holding in Cohen, a PTSD diagnosis presumably is in accordance with the DSM-IV criteria, both in terms of the sufficiency and adequacy of the stressor claimed.

As well in Cohen, however, the Court held that a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  Cohen, 10 Vet. App. at 142.  That is, generally speaking, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence.  See also Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996).

But this is not a hard-and-fast rule, and exceptions are made for certain types of claims depending on the type of particular stressor alleged, and this is reflected in the several subparts of 38 C.F.R. § 3.304 - (f)(1) through (f)(5).

According to subpart (f)(2), in particular, the evidence necessary to establish the occurrence of a stressor during service varies depending on whether the Veteran "engaged in combat with the enemy."  See also Hayes v. Brown, 5 Vet. App. 60, 66 (1993).  If it is shown through military citation or other appropriate evidence that he did, and the claimed stressors are related to that combat, his lay testimony regarding the reported stressors must be accepted as conclusive evidence of their actual occurrence, provided the testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service."  In this circumstance, no further developmental or corroborative evidence is necessary.  38 C.F.R. § 3.304(f)(2).  See also more generally 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d).

Further concerning this claim of entitlement to service connection for PTSD, it warrants additionally mentioning that effective July 13, 2010, so during the pendency of this appeal, VA amended its rules for adjudicating disability compensation claims for PTSD in 38 C.F.R. § 3.304(f)(3) to liberalize the evidentiary standard for establishing the required in-service stressor in certain other cases.  See 75 Fed. Reg. 39,843 (July 13, 2010) (announcing final rule, incorrectly listing effective date as July 12, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (correcting effective date to July 13, 2010).  More specifically, this new version of 38 CFR § 3.304(f)(3) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity."


This regulatory revision now requires that the following be demonstrated to establish service connection for PTSD:  1) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; 2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and 3) the Veteran's symptoms are related to the claimed stressor.  See 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); see also 75 Fed. Reg. 39,843 (July 13, 2010).

Claims for PTSD, however, which are predicated on combat service, so requiring consideration of 38 C.F.R. § 3.304(f)(2), are unaffected by this most recent change to subpart (f)(3).  Each subpart of this governing regulation, § 3.304(f)(1)-(f)(5), has its own nuances and exceptions to the pleading and evidentiary burden of proof requirements.  To wit, subpart (f)(1) concerns situations when there was diagnosis of PTSD during service, subpart (f)(2), as mentioned, when the claim is predicated on experiences in combat, the newly-revised subpart (f)(3) when there is a claim of fear of hostile military or terrorist activity, subpart (f)(4) if the Veteran was detained as a prisoner of war (POW), and subpart (f)(5) if he is alleging personal/sexual assault, i.e., military sexual trauma (MST).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.


III.  Entitlement to Service Connection for PTSD or Cognitive Disorder

The Veteran served on active duty in the military from September 1951 to September 1953, so before VA adopted the PTSD nomenclature in 1980 or thereabouts.  Still, his STRs are completely unremarkable for any complaints of, treatment for, or a diagnosis of a psychiatric disorder of any kind - including especially a stress-related mental illness.  The discharge physical noted a normal psychiatric evaluation.

A VA general medical examination was performed in December 2000, in conjunction with a claim for non-service-connected (NSC) pension benefits.  The psychiatric portion of the examination was entirely normal.  On examination, he was alert, coherent, relatively cooperative, well oriented and in no acute distress.  

A VA Aid and Attendance examination was performed in October 2004.  Among other illnesses, the Veteran reported a history of a cerebrovascular accident, i.e., a CVA or stroke.  On examination, he was alert and oriented to person and place, but only partially to time.  There were no psychiatric disorders diagnosed.  

A July 2007 VA psychology consultation record shows he was referred to the clinic by a physician for evaluation.  On diagnostic testing the evaluating psychologist determined the Veteran appeared to be experiencing cognitive difficulties.  His case was forwarded to the Neuropsychology Program Coordinator.  

Along with his claims for VA benefits, the Veteran submitted a June 2008 statement (and a duplicate copy, but it is dated in May 2009) from a VA fee-based physician, Dr. J.A.J.  This physician commented that the Veteran was suffering from clear and chronic PTSD, directly as a result of his combat experiences during the Korean Conflict.


A VA psychiatric examination was performed in July 2008.  The Veteran reported his service, social, and medical histories.  He indicated that he was involved in mortar attacks at a location called Kelly Hill, where he witnessed a fellow soldier wounded in the shoulder.  He also related another incident in which he witnessed a injury in which a soldier sustained a mortar fragment to the abdomen.  After mental status evaluation, the examiner diagnosed cognitive disorder, not otherwise specified (NOS).  He did not diagnosis PTSD, so concluded the Veteran did not have it, despite his combat experiences in Korean.

In October 2008, the Veteran had a VA Neuropsychology consultation.  In reporting his history, it was noted that he had suffered a CVA at some time between 1998 and 2000.  He had a battery of psychological tests.  The diagnostic impression at the conclusion of them was that he had a cognitive disorder, NOS.  This examiner also suspected the Veteran was in the early stages of Alzheimer's disease/dementia(AD).  However, she added that, while the objective testing pointed to significant functional limitations, the collateral information did not; therefore, a diagnosis could not be provided at that time.

The Veteran's Department of Defense Form 214 (DD Form 214) shows he was awarded the Combat Infantryman Badge (CIB), which is prima facie evidence he engaged in combat against enemy forces during the Korean Conflict.  See VAOPGCPREC 12-99 (October 18, 1999).

The fact that he had the claimed experiences in Korea during the Korean Conflict has never been at issue since the Board already conceded as much when previously remanding this claim in December 2011.  A stressor need not be corroborated in every detail.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997); Pentecost v. Principi, 16 Vet. App. 124 (2002).  This is especially true in this particular instance since records show he received the CIB for his service during the Korean Conflict, and he has reported stressors related to his combat service in that capacity.  Therefore, his lay statements regarding these reported stressors are to be accepted 

as conclusive evidence of their actual occurrence - since consistent with the circumstances, conditions and hardships of his service - so no further developmental or corroborative evidence concerning them is necessary.  38 C.F.R. § 3.304(f)(2).  See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d).

Rather, since his reported stressors in service are conceded to have actually occurred (inasmuch as they are said to have occurred in connection with his confirmed service in combat), resolution of this case ultimately turns instead on whether there is the requisite DSM-IV diagnosis of PTSD or another psychiatric disorder, and whether any such diagnosed psychiatric disorder is linked to his military service - in particular, to the combat incidents in Korea he has mentioned and that have been conceded to have actually occurred.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

In light of this, the Board remanded this claim in December 2011 to clarify all current diagnoses, including either confirming or ruling out this purported diagnosis of PTSD by obtaining medical comment on whether the DSM-IV requirements for this diagnosis are met.  But even if this diagnosis was not confirmed on remand, an opinion was needed concerning whether the other condition that has been diagnosed - namely, cognitive disorder, NOS, is related or attributable to the Veteran's military service, including especially to the events that concededly occurred in combat in Korea.

This additional medical comment was needed because the VA fee-based physician, Dr. J.A.J., had concluded the Veteran had PTSD as a consequence of his combat experiences during the Korean Conflict, whereas the VA examiner that had performed the mental status evaluation for compensation purposes in July 2008 had concluded the Veteran does not have PTSD, instead, the cognitive disorder, NOS.

The VA psychiatrist, D.F.-D., MD, who additionally evaluated the Veteran on remand in January 2012, however, following and as a direct result of the Board's remand of this claim, agreed with the prior July 2008 VA compensation examiner that the Veteran does not satisfy the DSM-IV requirements for a diagnosis of PTSD.  This additional VA compensation examiner interviewed the Veteran extensively and provided the findings in a detailed report.  She also acknowledged his reports of his combat experiences during the Korean Conflict, which included running for his life at times.  It was also noted, however, that he has been prescribed Galantamine since 2011, which is an anti-dementia therapy.  Ultimately, while this evaluating psychiatrist acknowledged the Veteran had witnessed traumatic events during his service in the Korean Conflict, it was nonetheless concluded that he did not meet other criteria for PTSD.  As notable examples, there was not reliving of traumatic experience, avoidant behavior symptoms, or persisting hyper-arousal.  Therefore, based on the responses the Veteran had given during that examination, but also during his previous consultations in 2008, this evaluating VA psychiatrist determined a diagnosis of PTSD could not be made, so was not warranted.

She then went on to point out that it was evident, instead, that the Veteran has severe cognitive impairment (a cognitive disorder, NOS).  She found it significant that the cognitive disorder was not first diagnosed until 2008, so not until many years after the Veteran's military service had ended, and that this diagnosis also had been confirmed.  She explained that his cognitive disorder is a severe mental condition that developed more than 50 years after his discharge from service.  She also concluded that his cognitive disorder was not an aggravation of a 
pre-existing mental condition or the result of the natural course of a pre-existing mental condition.  She added that this cognitive disorder is not related in any way to military service or to incidents while in military service.  Therefore, in the absence of findings of residual and continuity of symptomatology, service connection is not in order.  She concluded by noting there was no evidence in records showing that the present cognitive disorder, NOS, started in service or is related in any way to military service.  She felt it additionally necessary to point out that Dr. Dr. J.A.J. ("Juarbe"), who, as mentioned, had diagnosed PTSD related to the Veterans combat experiences in Korea, had based his opinion with partial information.  His opinion and conclusions, explained this VA compensation examiner, were not proven by test or any fact.  Conversely, the Veteran was interviewed in 2008 by a Compensation and Pension (C&P) specialist, and later by a team of psychologists, and he is receiving medication for this mental condition - referring to his cognitive disorder, NOS.

This commenting VA compensation examiner therefore not only determined the Veteran does not have PTSD according to the DSM-IV criteria, despite his combat experiences in Korea, but also completely disassociated his cognitive disorder NOS from his military service, so including from his combat experiences in Korea, hence, even accepting they occurred as alleged.

In deciding this claim, the Board must analyze the probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons and bases for rejecting or accepting any material evidence.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others.  See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Obviously, this responsibility is more difficult when, as here, medical opinions diverge.  And, at the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another.  Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Here, though, there are indeed legitimate reasons for giving more probative weight to the opinions against the claim versus those favoring the claim.

After considering the evidence both for and against the claim, the Board finds the statements of the VA fee-based physician, Dr. J.A.J., less persuasive in light of the overall record and the contrary opinion of the VA compensation examiners (at least one of which, as mentioned, is a psychiatrist).  The clinician that submitted the opinion supportive of the claim did not discuss the criteria on which he based his opinion, including especially the DSM-IV criteria for a diagnosis of PTSD.  And while, as mentioned, according to the holding in Cohen, it is presumed his diagnosis of PTSD was in accordance with these criteria, this does not negate the need to actually discuss or explain how these criteria were met to warrant or justify this diagnosis, especially since the VA compensation examiner did at length in a far more detailed and comprehensive report in comparison.  And this, not mere review of the claims file, is where most of the probative value of an opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation.  Stefl, 21 Vet. App. at 124.  The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).  This clinician who commented favorably did not point to any clinical data or other evidence supporting his diagnosis (despite VA attempts to obtain his records and further comments), whereas the VA compensation examiner who concluded unfavorably cited specific clinical findings and history in the records she had reviewed and considered.  Indeed, to this end, she had the benefit of reviewing the diagnostic studies of a team of VA psychologists that, as she pointed out, were not available to Dr. J.A.J.

It is equally unclear whether and to what extent Dr. J.A.J. provides Veterans of military service mental health care and evaluations, as he has been nonresponsive to request for his records.  But, regardless, there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors that have had occasion to treat or evaluate the Veteran over time.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993).  Indeed, to the contrary, although the 

Board may not ignore the opinions of treating clinicians, the Board certainly is free to discount the probative value of these doctor's statements so long as the Board provides adequate reasons and bases for doing this.  Sanden v. Derwinski, 2 Vet. App. 97, 100-01 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

The VA compensation examiner that evaluated the Veteran in January 2012 considered the Veteran's relevant medical and other history, aside from the results of her personal clinical evaluation of him, and discussed the Veteran's symptoms (or lack thereof) in the context of this history.  This examiner, a psychiatrist, also had specialized expertise.  See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991); Sklar v. Brown, 5 Vet. App. 140, 146 (1993).  Otherwise, an opinion may be reduced in probative value, even where the statement comes from someone with medical training, if the medical issue requires special knowledge.  Black v. Brown, 10 Vet. App. 279 (1997).  The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  This VA compensation examiner thoroughly considered the possibility that the Veteran's current psychiatric manifestations satisfied the criteria for PTSD, but ultimately rejected this notion based upon reasonable medical principles that were supported by the medical and other evidence.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position).

The medical evidence supports this VA examiner's conclusions.  As already noted, the Veteran was considered psychiatrically normal as recently as December 2000, so up to the time he reportedly suffered an unfortunate stroke.  While there is no doubting he had traumatic experiences during his combat service in Korea, the simple fact of the matter is that the most probative medical and other evidence of record indicates he does not have PTSD or other mental illness, including cognitive disorder NOS, as a consequence.

VA did not initially adopt the PTSD nomenclature until 1980 or thereabouts, so not until many years after the Veteran's military service had ended in 1953.  The Board therefore did not have expectation of a diagnosis of PTSD during his service or even for the many ensuing years.  The January 2012 VA compensation examiner nonetheless considered it significant that the Veteran was never seen while in the military for mental health purposes and that he also was not treated for an extended period of time even after his military service had ended.  So it appears, at least to some extent, that this VA examiner equated being treated for mental health related issues as tantamount to concluding the Veteran was not experiencing mental health related issues.  As already alluded to, however, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  That is, VA adjudicators cannot determine lay evidence regarding supposed continuity of symptomatology since service lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records since the essence of 38 C.F.R. § 3.303(b) is continuity of symptoms, not treatment for the symptoms.

The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has 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).  The Board therefore may consider the absence of any indication of a relevant medical complaint until so long after service - here, not until 2007 or thereabouts, as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology, and had failed to account for the lengthy time period for which there was no clinical documentation of disorder).  Moreover, § 3.303(b) regarding continuity of symptomatology only applies when a condition was "noted" during service, and no such condition was noted during service in this instance.

In Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) and Kahana v. Shinseki, 24 Vet. App. 428 (2011), the Federal Circuit Court and Veteran's Court (CAVC) cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  But, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 
1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

And, here, the January 2012 VA compensation examiner considered it noteworthy that there were no relevant findings in service.  Moreover, this examiner readily conceded that the Veteran had experienced the type of trauma ("stressors") claimed in service, so did not ignore this injury in service, rather, fully accepted that it had occurred, but in the process still concluded that any current psychiatric disability was unrelated to military service.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion).

In this decision, the Board has considered all lay and medical evidence as it pertains to this claim.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  But, again, it is not lack of the required proof of relevant injury in service, rather, absence of the necessary evidence establishing disability as a result or consequence of said injury.  And the Veteran's mere lay statements, alone, are insufficient to determine whether he has PTSD either in addition to or in lieu of a cognitive disorder, NOS, and insofar as whether this present disorder, whatever the appropriate diagnosis, is related or attributable to any disease, injury or event that occurred during his military service, including especially while engaged in combat during the Korean Conflict.  As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing service connection.  See Barr.  Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations.  Jandreau; see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Because PTSD and cognitive disorders are not the types of conditions that are readily amenable to mere lay opinion regarding their diagnosis and etiology, his lay statements are not ultimately probative of these determinative issues in this appeal.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic fever or rheumatic heart disease).

For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for a psychiatric disorder, inclusive of PTSD and cognitive disorder NOS.  And since the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and this claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The claim for service connection for a psychiatric disorder, inclusive of PTSD and a cognitive disorder NOS, is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs