Citation Nr: 1303347 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-17 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The case was remanded in January 2012 to obtain additional treatment records and an addendum opinion from an April 2011 VA examiner. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that the United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever it is, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the record shows that the Veteran has diagnoses of PTSD, dysthymia and major depressive disorder. Accordingly, the Board has characterized the issue as set forth on the title page. Also, the Board observes that the Veteran was denied service connection for a mental condition in an unappealed June 1996 rating decision as there was no evidence of a current disability or diagnosis of a psychiatric disorder. The current claim is premised on a diagnosis of psychiatric disorders, to include PTSD. A claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). FINDING OF FACT A psychiatric disorder, to include PTSD, was not present during service, a psychosis was not manifest within a year of separation from service, and a currently diagnosed psychiatric disorder did not develop as a result of any incident during service. CONCLUSION OF LAW A psychiatric disorder, to include PTSD, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in August 2008 of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and also secured an examination in furtherance of his claim. A pertinent VA examination was obtained in April 2011 with an addendum opinion in January 2012. 38 C.F.R. § 3.159(c)(4). The VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered a well supported opinion based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). In finding that VA's duty to assist with respect to obtaining a VA examination has been met, the Board acknowledges the representative's July 2012 argument that a new VA examination is needed to determine whether a psychiatric disorder is secondary to the Veteran's service-connected diabetes mellitus. However, no medical professional has provided any opinion indicating that the Veteran's diabetes mellitus may have caused or aggravated a psychiatric disorder. Therefore, the Board concludes VA is not required to obtain a medical opinion with respect to this issue because the record does not contain any competent evidence that a psychiatric disorder may be associated with a service connected disability. Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010). The Waters Court noted that since all Veterans could make bare assertions that a service connected illness caused their current medical problems requiring examinations in such cases "would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case." Id. at 1278. The Federal Circuit "expressly rejected" the "theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues." Id. at 1278-1279. VA has no duty to inform or assist that was unmet. As noted in the Introduction, this issue was remanded, in part, to obtain additional records. The Appeals Management Center (AMC) was instructed to obtain psychiatric STRs from Fort Gordon. A response from the National Personnel Records Center (NPRC) in April 2012 indicates that no Fort Gordon records were located. The Veteran was notified that his records were not located in April 2012. A memorandum dated in April 2012 set forth the AMC's efforts to obtain those records. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Certain chronic diseases (e.g., psychoses) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Entitlement to service connection for PTSD in particular requires medical evidence diagnosing PTSD in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f); 4.125(a). Where the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2012); Cohen v. Brown, 10 Vet. App. 128 (1997). Evidence denoting participation in combat includes award of decorations such as the Combat Action Ribbon, Combat Infantryman Badge (CIB), Purple Heart Medal, and decorations such as the Bronze Star Medal that have been awarded with a Combat "V" device. Where VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Cohen v. Brown, 10 Vet. App. 128 (1997). With regards to the corroboration of stressors, the Board observes the recent amendment to 38 C.F.R. § 3.304 concerning stressors based on a veteran's "fear of hostile military or terrorist activity." Specifically, the amendment provides that, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and if a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "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, . . . , and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 75 Fed. Reg. at 39,852. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that he has a psychiatric disorder, to include PTSD, that was incurred during his military service. Specifically, he contends that a psychiatric disorder is due to stressors of seeing an enemy solider while on guard duty who blew up helicopters and being told not to fire at them, being confronted by a cobra while using an outhouse, and being fired upon by the enemy. See, e.g., November 2009 stressor statement; April 2010 substantive appeal. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current psychiatric disorder became manifest or otherwise originated during his period of service or within one year of service separation or is otherwise related to his military service. Initially, the Board observes that the RO conceded in-service stressors of a fear of hostile military or terrorist activity. See March 2011 informal conference summary. The Veteran's DD 214 shows that his military occupational specialty (MOS) was that of a switchboard operator. His personnel records confirm service in Vietnam from June 1971 to June 1972. The Board observes that the Veteran's records do not confirm the receipt of any decorations or medals denoting participation in combat. After reviewing all of the pertinent evidence of record, the Board agrees with the RO that the Veteran incurred in-service stressors based on a fear of hostile military or terrorist activity. However, the evidence fails to show that a current psychiatric disorder, to include PTSD, is related to the Veteran's military service. There is no finding that a chronic psychiatric disorder was treated or diagnosed during service. The Veteran's entrance examination in January 1971 and discharge examination in November 1972 both revealed a clinically normal psychiatric system. In his November 1972 report of medical examination, he admitted symptoms such as frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. A notation indicated that the Veteran had been nervous for three months. A mental hygiene consultation was requested. The November 1972 consultation indicates that there was no evidence of psychiatric disease. The Veteran experienced emotions in situations which were quite appropriate for such feelings. No profile was indicated. The Veteran was psychiatrically cleared for any administrative action deemed appropriate. There is no indication in any of his STRs that he was treated for symptoms associated with a currently diagnosed psychiatric disorder. There is also no indication of a diagnosis of a psychiatric disorder, to include PTSD in his STRs. As noted above, the Veteran asserts that he received psychiatric treatment while in service at Fort Gordon after returning from Vietnam. However, in April 2012, the NPRC reported that no records were found. To date, no service psychiatric treatment records from Fort Gordon have been obtained. Furthermore, there is no indication in the STRs that are of record that the Veteran did receive separate psychiatric treatment. The Veteran's contemporaneous service records fail to show that the onset of any psychiatric disorder occurred during service. The totality of the evidence fails to show that the onset of any current psychiatric disorder occurred during the Veteran's service. The pertinent medical evidence of record fails to show opinions other than the November 1972 mental hygiene consultation. No medical professional has reported that the onset of any current psychiatric disorder began during the Veteran's military service. There is also no medical evidence of the manifestation of a psychosis within a year of separation of service. At a VA examination in May 1973, the Veteran reported that he was referred to a psychiatrist in service because of abdominal pain. He denied any particular trouble with nervousness at the present time. The Veteran was diagnosed with a history of psychoneurosis, anxiety reaction, manifested by gastrointestinal symptoms. Following that examination, the earliest medical record demonstrating the presence of symptoms associated with a psychiatric disorder is a VA treatment record dated in April 2006 wherein the Veteran complained of insomnia on and off for years and flashbacks and bad dreams related to service in Vietnam. He was not accepted into PTSD treatment due to high blood pressure. Following a mental health evaluation in February 2007, the Veteran was diagnosed with PTSD; no opinion relating PTSD to the Veteran's service was provided. In May 2007, the Veteran was diagnosed with dysthymia; again, no opinion as to the etiology was provided. No medical professional has provided any opinion indicating that a psychosis was manifest to a degree of 10 percent or more within one year from the Veteran's discharge from service. In reaching this conclusion, the Board observes the Veteran's testimony at his September 2011 hearing that he received VA psychiatric treatment as early as 1974. However, in response to a request for records from the AMC, the Dorn VA Medical Center (VAMC) submitted the only records they had for the Veteran from the early 1970s, which included records in 1973 showing complaints of nasal congestion and other allergic symptoms and abdominal pain in 1974. There is no indication that the Veteran received psychiatric treatment from VA, or any other provider, in 1974. The pertinent medical evidence that has been presented includes numerous records showing current diagnoses of psychiatric disorders such as dysthymia, PTSD and major depressive disorder. However, these records do not contain medical opinions relating any currently diagnosed psychiatric disorder to the Veteran's military service. At a VA examination in April 2011, the Veteran was diagnosed with dysthymic disorder. The Veteran reported his in-service military stressors to the examiner. The examiner opined that the Veteran presented with symptoms of PTSD, but not sufficient for a diagnosis of PTSD. The Veteran had a history of a mental health consultation during active duty military service. He did not receive any diagnosis during his active duty military service. He did not receive ongoing treatment after that. The Veteran initiated treatment for his dysthymic disorder three or four years ago and was now receiving treatment through his primary care provider at VA. The examiner concluded that there was no active mental health diagnosis related to active duty military service. Although the examiner's original opinion indicates that it was at least as likely as not that the Veteran's dysthymic disorder was due to his military service, an addendum opinion was obtained in January 2012 indicating that the original examination report had typographical errors in the dictation. The examiner opined that the Veteran's dysthymic disorder was not related to active duty military service. The examiner again noted that the Veteran had a history of a mental health consultation during service with no diagnosis during active duty and he did not continue with any ongoing treatment after that. The probative medical evidence simply fails to adequately establish any nexus between a current psychiatric disorder, to include PTSD, and the Veteran's period of service. No medical professional has provided any opinion indicating that any currently diagnosed psychiatric disorder is related to the Veteran's military service, including his conceded in-service stressors. The Board acknowledges the representative's argument that service connection is warranted as VA treatment records show that the Veteran talked about his experiences in Vietnam. However, the Board reiterates that no medical professional actually provided an opinion supported by a rationale indicating that the Veteran has a psychiatric disorder that is related to his military service. Without competent evidence of an association between a psychiatric disorder and his active duty, service connection for a psychiatric disorder, to include PTSD, is not warranted. The Veteran has expressed his belief that he has a psychiatric disorder, to include PTSD, that is related to his service, but there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a)(1). His own assertions as to etiology have no probative value. Without evidence of the onset of a psychiatric disorder in service or competent evidence of an association between a psychiatric disorder and the Veteran's active duty, service connection for a psychiatric disorder, to include PTSD, is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder, to include PTSD. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for a psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs