Citation Nr: 1300558 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-33 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO denied the Veteran's claim for service connection for PTSD as well as a claim for service connection for hypertension. The Veteran timely appealed both denials. However, the Veteran then submitted a December 2011 written statement that he wished to withdraw his claim for service connection for hypertension. As the claim for service connection for hypertension was withdrawn in accordance with 38 C.F.R. § 20.204 (2012) prior to the certification of the appeal to the Board, it is not in appellate status and, therefore, not included on the title page of this decision. Although the RO defined the issue as entitlement to service connection for PTSD, the Board has recharacterized the issue to whether service connection is warranted for an acquired psychiatric disorder, to include PTSD, as noted on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file revealed additional medical evidence consisting of VA treatment records. Such evidence was received after the issuance of the July 2009 statement of the case (SOC) and the Veteran has not waived agency of original jurisdiction (AOJ) consideration of this evidence. 38 C.F.R. § 20.1304 (2012). However, the "new," i.e., dated after the SOC, evidence within Virtual VA reflects only continued treatment for the psychiatric diagnoses already of record. These "new" treatment notes do not discuss the etiology of any psychiatric disorder. Therefore, the additional evidence is duplicative of the evidence already of record and not pertinent to the issue of service connection that is currently on appeal. As such, the Board may proceed with the issuance of a decision without prejudice to the Veteran. See Bernard v. Brown, 4 Vet.App. 384 (1993). FINDINGS OF FACT 1. The Veteran is competent to report the circumstances of his service, but his reports are not credible. 2. The probative evidence of record does not support the conclusion that an acquired psychiatric disorder, to include PTSD, began during service or was otherwise caused by the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110 , 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five (5) elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet.App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated August 2007, sent prior to the initial June 2008 rating decision, advised the Veteran of the evidence and information necessary to substantiate a service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter included a PTSD stressor questionnaire (VA Form 21-0781) and informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Veteran was also specifically advised in a separate January 2008 (pre-adjudication) letter of what evidence was necessary to substantiate his claimed PTSD stressors; the letter stated that certain information was necessary to obtain supportive evidence and advised that an incomplete response could result in denial of the claim. The letter included another PTSD stressor questionnaire and informed the Veteran that he could submit alternative forms of evidence to substantiate his claim. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992); 38 C.F.R. § 3.159(e). Relevant to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA treatment records and identified private records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The claims file reflects that the RO followed all appropriate steps to verify the Veteran's reported stressors, but were unable to do so due to lack of information from the Veteran. In accordance with 38 C.F.R. § 3.159(c), the RO issued a March 2008 Memorandum making a formal finding that there was a lack of information required to corroborate his claimed stressors and that, as a result, further efforts at corroboration would be futile. The duty to assist also provides that VA will afford a claimant a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet.App. 79 (2006). The Board notes that the Veteran has not been provided with a VA medical examination and/or opinion regarding his claim for service connection for an acquired psychiatric disorder. However, the Board finds that an examination is not necessary in the instant case. Specifically, as will be discussed below, there is no credible evidence that the Veteran experienced the claimed stressors while he was in service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet.App. 36 (2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements of 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). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). In specific regard to a claim for service connection for PTSD, the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C.A. § 1154(b). However, in this case, the evidence plainly shows that the Veteran was not in combat, and, more pertinent to his claim, he has not reported any combat-related stressors. As such, the presumptive provision of 38 C.F.R. § 3.304(f)(2) is not applicable. Recent amendments to the regulation have eliminated the requirement that claimants present evidence corroborating the occurrence of the claimed in-service stressor in claims in which PTSD was diagnosed in service and in some claims in which the claimed stressor is related to the claimant's fear of hostile military or terrorist activity. Specifically, 38 C.F.R. § 3.304(f) was amended during the course of the Veteran's appeal to read that if a stressor claimed by a Veteran is related to his 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 PTSD 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. "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. However, in this case, the stressors that the Veteran asserts have caused his PTSD do not fit the criteria provided in 38 C.F.R. § 3.304(f)(1). The stressors he described include having seen a U.S. service-member accidentally killed while riding a bicycle and experiencing airplane turbulence while on duty. Although he alleges that these stressors occurred while he was serving outside of the United States, he does not allege that they involved any combat, foreign enemy, or terrorist action. As his reported stressors clearly do not fit within either the language or the intended purpose of the revised regulations, the regulations are not applicable to his claim. Further, as the record reflects that the Veteran was not diagnosed with PTSD while in service, the presumptive provision of 38 C.F.R. § 3.304(f)(1) (pertaining to circumstances in which PTSD was diagnosed while a Veteran was serving on active duty) is not applicable. His alleged stressors are also not personal assaults so the presumptive provision of 38 C.F.R. § 3.304(f)(4) (pertaining to PTSD claims based on in-service personal assault) is inapplicable as well. The Board must look to the evidence of record to determine whether it corroborates either or both of the Veteran's reported stressors such that service connection may be granted under the provisions of 38 C.F.R. § 3.304(f). The Veteran's service treatment records reflect no diagnoses or treatment for any nervous disorders. The Veteran specifically denied experiencing any nervous trouble on self-reports of medical history completed in August 1974, March 1975, and April 1976. Private treatment notes do not reflect any complaints of, or treatment for, nervous disorders. An August 2001 private treatment note states that the Veteran's "psychiatric systems are negative." In August 2002, the Veteran's private physician noted that he denied any psychiatric symptoms. In September 2004, the Veteran underwent a PTSD screening as part of a primary care visit at a VA Medical Center (VAMC). The screening yielded a positive result so he was referred for follow-up mental health treatment. At the October 2004 follow-up appointment, "he complained of nightmares regarding his mother's death... and job stress." He was diagnosed with an adjustment disorder with mixed emotional features. The treating providers noted that additional follow-up was needed to rule out possible diagnoses of depression and PTSD. Subsequent November 2004 and December 2004 treatment notes reflect diagnoses of depression. A January 2005 note lists major depressive disorder as the diagnosis, but also states that the Veteran denied experiencing depression. Depression is again listed as the diagnosis in an early March 2005 treatment note, but a note of treatment from later that month lists PTSD as well as depression. The note states that PTSD is the result of "civilian stressor" and again references the Veteran's report of employment stress. Subsequent VA treatment notes continue to reflect diagnoses and treatment of both PTSD and depression. The Veteran was seen in April 2007 for a follow-up appointment and the resulting note reflects a reiteration of his diagnoses and an assessment of the severity of his symptoms. An addendum to this treatment note states that the Veteran had reviewed his "documentation" and was "in disagreement." A supportive letter from the Veteran is associated with the claims file. In the letter, he reported witnessing the death of "one of my buddys" who was "getting ready to ETS as his CO was coming in from a field trip he was riding on a bicycle down the road when the truck turn in he ran up under the truck and it ran over his head and it killed him." He also reported being scared in service when he was on an airplane to England that suddenly lost altitude, causing equipment in the airplane to bounce around. As reflected in the April 2007 treatment note addendum, the Veteran informed a VA clinical nurse specialist of two (2) military stressors that he believed caused his PTSD. Specifically, he reported that, while serving in Germany in 1975, he and his friends spoke with a man whom he then, immediately afterwards, saw killed when an engineering truck ran over his head; he also reported that, while on duty, he was on an airplane that suddenly dropped 30 to 40 feet in altitude and witnessed equipment bouncing around inside the aircraft. He reported that, after the airplane incident, he was "shook up" and feared for his life. Although the VA clinical nurse specialist noted that those two (2) reported stressors met Criterion A of the DSM-IV (American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)) diagnostic standards for PTSD, she did not state that they were the causes of any of his diagnoses. Furthermore, the Board notes that in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court, citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion. Id. at 179. In Kowalski, the Court declared, however, that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history provided by the Veteran, and instead must evaluate the credibility and weight of the history upon which the opinion is predicated. Id. In Coburn v. Nicholson, 19 Vet. App. 427 (2006), the Court, citing Kowalski, as well as Swann and Reonal, emphasized that the Board may not disregard a medical opinion solely on the rationale that the medical opinion is based on a history provided by the Veteran. Id. at 432-33. In the instant case, as will be further discussed below, the Board finds the Veteran's reports regarding the two incidents cited by the nurse to be not credible. Therefore, her conclusions are afforded no probative value. Subsequent VA treatment notes continue to reflect diagnosis and treatment for depression and PTSD without further discussion of the Veteran's claimed stressors. The Veteran filed his claim for service connection in June 2007. He indicated on his claim form that his PTSD and depression began in October 2004. His claim was accompanied by multiple supportive lay statements. A June 2007 letter from his wife states that she had been married to the Veteran for 28 years and had observed that he "always had problems dealing effectively with people." She wrote that the Veteran "has nightmares of his tour of duty in Vietnam" and that he "said he sa[w] dead bodies and [heard] of plenty of soldiers getting killed." The Veteran's sister wrote that he was "very upset and angry at times, and also has been very depress[ed] about everything." His children wrote a collaborative letter stating that they had observed him "have mood swings, problems sleeping, temper outbursts, moods of depression, and locking himself in the room." In August 2007, the Veteran submitted a statement in support of his claim for service connection for PTSD (VA Form 21-0781). He reiterated that, while in service, he had "just" been speaking to a man whom he saw killed when an engineering truck ran over his head. He again reported being on an airplane that suddenly lost altitude and caused equipment inside to "bounce all over the plane." The Veteran indicated on the form that he could not remember the man's name or duty assignment or the date of either incident. He gave a time frame of "1975 or 1976." After receiving VA's January 2008 letter which informed him that additional information was need to corroborate his stressors, the Veteran mailed VA another VA Form 21-0781. He again wrote that while he was in service he saw a man, whom he had just been talking to, get his head run over by an engineering truck. He again wrote that he could not remember the man's name, his company of assignment, or the exact date of the incident. He reported that the incident occurred in between January 1975 and August 1976 during the months of May through July. He reported the same time frame for his airplane stressor and wrote that he could not provide any extra detail because the events occurred more than 30 years prior. Due to the lack of any identifying information for the individual that the Veteran claimed was killed, the wide time frame, and the unverifiable nature of the airplane incident, the RO determined in a March 2008 Memorandum that there was insufficient evidence of record to corroborate either of the Veteran's claimed stressors. In regard to the Veteran's reported in-service experiences that he alleges resulted in his current acquired psychiatric disorder, the Board notes that a layperson such as the Veteran is considered competent to report the circumstances of his service as well as onset and continuity of symptomatology. See Layno v. Brown, 6 Vet.App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir. 2007). However, in adjudicating this claim, the Board must assess not only the competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. Although first, the Board must determine whether the evidence comes from a "competent" source, then it must determine if the evidence is worthy of belief. Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). As a third step, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. In determining probative value, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed.Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed.Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In this case, the only evidence of the reported in-service events consists of the Veteran's own statements and a few supportive lay statements. However, all of these statements are vague and contradictory. Specifically, the Veteran's wife wrote in June 2007 that the Veteran's stressor was his service in Vietnam, but the Veteran's service records show that he never served in Vietnam. Although the statements from his sister and children indicate their observance of some symptomatology, they do not indicate specific time frames. The notes appear to attest to a long history of symptomatology, but the Veteran wrote on his claim form that his symptoms did not start until October 2004 and his private physician observed no psychiatric problems in 2001 and 2002. The Veteran wrote in April 2007 that the man he saw being run over by a truck was a "buddy" of his who was just arriving with his company in order to ETS, but in subsequent statements he refers to the individual as a man whose name he does not know and states that he and his friends had been talking to him immediately before the truck ran him over. He has never provided any exact location, or a time frame smaller than a six (6) month period (May, June, and July in either 1975 or 1976), in regard to either alleged stressor. Although he stated in April 2007 that he was en route to England when experiencing airplane turbulence, he has not provided any additional detail or explained why he was traveling to England as his service records reflect that his only foreign service was in Germany. Although the Veteran is competent to report the circumstances of his service and his symptomatology, the Board finds his statements regarding his in-service experiences to be not credible due to inconsistency. See Caluza, 7 Vet.App. at 511-512 (the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party, but his personal interest may affect the credibility of the evidence. See Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991). Moreover, the Veteran himself has not alleged a continuity of symptomatology since service. In this regard, he indicated on his claim form that his symptoms did not start until October 2004 and his private physician observed no psychiatric problems in 2001 and 2002. VA has attempted to assist the Veteran in corroborating his alleged stressors, but he has not submitted enough information to enable VA to do so. See 38 U.S.C.A. § 5107(a) (A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA). Further, his statements are inconsistent and some of the evidence he has submitted in support of his own claim is contradictory of his own contentions. The weight of evidence does not support a finding that the Veteran is sufficiently credible such that his testimony alone can corroborate his reported stressors and, as discussed above, the Board cannot apply any of the presumptive provisions of 38 C.F.R. § 3.304(f) to otherwise corroborate the stressors because the Veteran was not diagnosed with PTSD while in service and his claimed stressors are not based on combat, personal assault, or fear of hostile military or terrorist activity. The Veteran's reported stressors have not been corroborated so the criteria for service connection for PTSD have not been met. Further, as there is no competent, credible evidence of an in-service injury or continuity of symptomatology, the criteria for service connection are not met for any other diagnosed acquired psychiatric disorders, to include depression. In this regard, although the Veteran's wife, sister, and children submitted statements attesting to various behaviors displayed by the Veteran over the time they have known him, the statements from his sister and children were vague in regard to time frame and the probative value of his wife's statement is undercut by her discussion of stressors incurred in Vietnam since the claims file shows that the Veteran did not serve in Vietnam. Further, none of these individuals have indicated that they possess any medical knowledge or training that would qualify them to recognize or diagnose symptoms of psychiatric disorders. Routen v. Brown, 10 Vet.App. 183 (1997); Woehlaert v. Nicholson, 21 Vet.App. 456 (2007). The claims file plainly reflects that the diagnoses of adjustment disorder, PTSD, and depression were made based on civilian stressors including the Veteran's mother's death and his job stress. Although an April 2007 VA mental disorders treatment note addendum indicates a VA clinical nurse specialist's assessment that the two (2) service stressors reported by the Veteran met Criterion A of the DSM-IV diagnostic standards for PTSD, the addendum does not provide an opinion regarding etiology and the Board has found it to be of no probative value as such is based on the Veteran's non-credible statements. See Kowalski, supra; Coburn, supra. Therefore, as the Board has found the Veteran's report of in-service experiences that he alleges resulted in his current acquired psychiatric disorder to be not credible and without competent, credible evidence of any in-service injury, the Veteran's claim must be denied. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs