Citation Nr: 1304947 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-09 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, including an anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2010, the Board remanded this case for additional development. Following completion of the requested development, the Appeals Management Center (AMC) continued its denial and returned the case to the Board. While the RO originally characterized the psychiatric claim as one of entitlement to service connection for PTSD, the record reflects other psychiatric diagnoses. Given that, and because the RO actually considered other psychiatric diagnoses in adjudicating the claim, the Board has recharacterized this claim to encompass any acquired psychiatric disorder, including anxiety disorder and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board's decision addressing the matter of entitlement to service connection for PTSD is set forth below. For reasons discussed following the order, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, including an anxiety disorder, is REMANDED to the RO via the AMC, in Washington, DC. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The preponderance of the competent and probative evidence is against finding that the Veteran has a diagnosis of PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this case. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2005 and April 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The April 2006 letter also notified the Veteran of how VA determines the disability rating and effective date. The claim was readjudicated in a January 2012 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, including obtaining service and post-service treatment records pertaining to his claimed PTSD. Pursuant to the Board's November 2010 remand, VA afforded the Veteran a VA examination that resulted in a report containing sufficient evidence by which to make a determination regarding the issue of service connection. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Analysis The Veteran contends that he is entitled to service connection for PTSD as he believes this disability originated in service and is due to in-service traumatic events. Specifically, the Veteran asserts that transportation convoys were exposed to incoming enemy fire on at least two occasions while en route to Tuy Hoi from Cam Rahn Bay in the Republic of Vietnam. Pertinent VA law and regulations provide that service connection may be granted for 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. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (for VA purposes, all mental disorder diagnoses must conform to American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.304(f)(1). 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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). Finally, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of 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. 38 C.F.R. § 3.304(f)(3). For purposes of this paragraph, 'fear of hostile military or terrorist activity' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In the present case, service treatment records do not reflect any complaint, finding, treatment, or diagnosis with respect to any claimed psychiatric disability. There were no psychiatric abnormalities reported in the Veteran's report of medical history at discharge or at his August 1985 discharge (Medical Board) examination. The Veteran's service personnel records confirm that he served in Vietnam from August 1966 to August 1967; they also show that his military occupational specialty was truckmaster. There is nothing which corroborates or supports the assertion that he was directly involved in combat during his year in-country or that any convoy he rode with was subject to enemy attack. Post service, private psychiatric reports dated in February 2005 and January 2006 reflect that the Veteran was referred for evaluation for PTSD by a veterans organization. Both reports were completed by a psychiatrist and reflect an assessment of PTSD related to the Veteran's Vietnam experiences. Pertinent to the current determination, these reports indicate that the diagnosis of PTSD was based, in part, on a history of current symptoms which include nightmares and flashbacks regarding Vietnam, avoidance of stimuli such as war movies, intrusive thoughts about Vietnam, and hypervigilance. Further, both reports reflect the Veteran reported feeling his life was threatened while in Vietnam and fearing that he would not make it home alive. Significantly, absent more specific information from the Veteran regarding the dates of his convoy attacks, the RO was unable to attempt verification of his stressor through the U.S. Army and Joint Services Records Research Center. During the pendency of this appeal, however, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. As previously discussed, the amended regulation provides generally 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Acknowledging that the Veteran's alleged stressor appeared to fall within the purview of the new regulation, the Board remanded this appeal in November 2010 to obtain an opinion by a VA psychiatrist or psychologist as to whether the Veteran's claimed stressor was adequate to support a diagnosis of PTSD and whether his current psychiatric symptoms are related to the claimed stressor. The resultant May 2011 VA examination report reflects that the Veteran provided a history of seeking treatment for insomnia from the Goldsboro Psychiatric Clinic in 2005 with continued treatment since 2006. The appellant acknowledged that therapy was recommended both in 2005 and 2006, but denied participating or attending any group or individual therapy. The appellant indicated that he had taken a number of medications prescribed by the psychiatrists, but that he had recently discontinued all medication because it was not helping. The Veteran noted that he was now working with his primary care physician to address his sleep problems as he now attributed them to nocturia. Regarding his military and psychiatric history, the Veteran reiterated that he was subjected to incoming enemy fire on at least two occasions while serving in Vietnam. He was unable to provide any specific details regarding the attacks and could not recall whether his reaction to the attacks involved intense fear, feelings of helplessness or horror, or other reaction. The Veteran denied any problems with depression or anxiety since service. He also denied persistently reexperiencing the events of Vietnam, to include flashbacks, nightmares, and intrusive thoughts. The Veteran admitted that he was able to watch documentaries regarding Vietnam without incident and noted that other stimuli which reminded him of Vietnam did not produce intense physiological or psychological reaction. The May 2011 VA psychiatrist noted significant discrepancies between the history provided during the examination and those provided in the February 2005 and January 2006 Goldsboro reports. When asked about these discrepancies, the Veteran was unable to provide any explanation. The examiner noted, however, that the Veteran again denied the existence of these symptoms and reiterated that he sought treatment at Goldsboro for insomnia, and not other psychiatric problems. Based on the May 2011 examination, the VA psychiatrist concluded the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. He acknowledged that the Veteran's reported stressor would be sufficient to produce PTSD, but indicated that the appellant did not demonstrate symptoms consistent with this diagnosis. Specifically, he did not report persistently reexperiencing the claimed stressor, a symptom (under criterion B) that is required for a diagnosis. Regarding the private diagnoses of record, the May 2011 examiner noted that these diagnoses appeared to be erroneous as they are based upon a false history of the Veteran's psychiatric symptoms. The record demonstrates a marked difference between the assessments of the private psychiatrists and the VA psychiatrist. There is no question that the private psychiatrists are equally competent to provide an opinion regarding the Veteran's psychiatric diagnosis. The Board, however, is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board concludes the finding of the May 2011 VA examiner to be more probative than the findings of the Goldsboro psychiatrists. As discussed above, the Veteran himself reported a vastly different psychiatric picture at the May 2011 VA examination and, when directly confronted about the discrepancies between this and the Goldsboro reports, indicated the private reports were inaccurate. The Board finds the Veteran's May 2011 statements sufficient to cast doubt on the histories noted in the Goldsboro reports. Further indication of the inaccuracy of these reports, however, is also shown in other medical evidence of record. In this regard, November 2001 and March 2004 VA nursing notes reflect the Veteran denied being bothered by repeated memories, thoughts, or images of a stressful event he had previously experienced. He also denied feeling distant from others or being hypervigilant. A June 2004 VA nursing note reflects that he similarly denied feelings of depression or hopelessness. In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the United States Court of Appeals for Veterans Claims (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. Here, the Veteran himself confirmed the inaccuracy of the psychiatric symptom history provided in the February 2005 and January 2006 private reports. Thus, given that the diagnosis of PTSD in these reports was based, in part, on an inaccurate history of the Veteran persistently reexperiencing his Vietnam stressor, and considering the May 2011 examiner's statement that symptoms of persistent reexperiencing are required for a DSM-IV diagnosis of PTSD, the Board finds the Goldsboro reports, and any conclusions therein, worthless and lacking probative value. Conversely, the May 2011 VA examination report was based upon an accurate history of the Veteran and, as such, is probative to the issue at hand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, the competent and probative evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for PTSD is therefore denied. ORDER Entitlement to service connection for PTSD is denied. REMAND Although service connection is not warranted for PTSD as there is no valid diagnosis of this disability, the Board's inquiry is not over. In this regard, the May 2011 VA examiner concluded that the Veteran did have a psychiatric disorder - anxiety disorder, not otherwise specified. The examination report reflects an opinion that this disorder was "less likely as not" caused by or a result of the Veteran's reported Vietnam stressor. The examiner did not, however, provide any explanation for this opinion. Given the Veteran's competent reports of increased problems with alcohol following service, feelings of detachment, and reports by his wife that he was a "different person," the Board finds the current opinion regarding the Veteran's anxiety disorder inadequate and concludes that a remand for a supplemental opinion is necessary. See Miller v. West, 11 Vet. App. 345, 348 (1998). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the psychiatrist who conducted the May 2011 VA examination for a supplemental opinion. Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review. Regarding the previously diagnosed anxiety disorder, not otherwise specified, the psychiatrist is to opine whether it is at least as likely as not that this disorder is related to the Veteran's active military service or events therein, to include the claimed Vietnam stressor of convoy attacks. A complete rationale for any opinion expressed must be provided. The psychiatrist is to consider all relevant evidence, to include any lay statements of record such as the Veteran's report of problems with alcohol following service, feelings of detachment, and reports by his wife that he was a "different person." If the psychiatrist is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the psychiatrist must specifically explain why the cause of any diagnosed psychiatric disorder is unknowable. The Veteran should only be scheduled for a new examination if the May 2011 VA psychiatrist is unavailable, or if additional examination is deemed necessary. 2. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 3. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, including an anxiety disorder. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs