Citation Nr: 1305181 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 05-24 913 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2004 rating decision by the VA RO in Boise, Idaho. The Veteran's claim was before the Board in June 2008, December 2010, and May 2012, at which times his claim was remanded for further development. The claim has since been returned to the Board for adjudication. FINDING OF FACT An acquired psychiatric disorder, to include PTSD was not shown in service or until several years after service, and has not been shown to be etiologically related to a disease, injury, or event in service, including an in-service stressor. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD is not warranted. See 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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 letters dated in May 2004, July 2004, and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, these letters described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The Board notes that this issue was recently remanded in order to obtain any available Social Security Administration (SSA) records. However, a response to this request indicated that, after exhaustive and comprehensive searches, medical records were unable to be located and further efforts would be futile. The Board finds that all available records identified by the Veteran as relating to this claim have been requested and obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination for his acquired psychiatric disorder, to include PTSD claim most recently in April 2011. An addendum was provided to this examination report in January 2012. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. As such, the Board finds this examination report and addendum opinion to be thorough, complete, and sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, 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) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served 90 days or more of continuous, active military service and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such psychosis shall be presumed to have been incurred in service even though there is no evidence of it during the period of service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). During the pendency of this appeal, 38 C.F.R. § 3.384 was added to further define a "psychosis" to include 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. Id. (effective August 28, 2006). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). 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. See 38 C.F.R. § 3.304(f)(1) (2012); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). In recent years, the regulations governing PTSD have been amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as a result of his military service. Specifically, the Veteran's July 1995 stressor letter, another undated stressor letter, and a February 2005 Statement in Support of the Claim (VA Form 21-4138) state that he was stationed at the 435th Munitions Squadron in Phan Rang, Vietnam. He claimed that, one day, a crew was loading an F-100 or checking the breech of the 20 mm. on the plane. He claimed that Tsgt. Shipwash did not look before pulling the trigger; and a man was struck by one of the expended rounds and was killed instantly. The Veteran's July 1995 stressor letter stated that it occurred in August 1969. The Veteran also stated that his base was the target of a couple of rocket attacks between July 1968 to July 1969. As an initial matter, the Board notes that response from the United States Army & Joint Services Records Research Center (JSRRC) was received verifying the Veteran's reported in-service stressor with serving in the Republic of Vietnam. A review of the service treatment records reveals no complaints, treatment, or diagnoses of PTSD or a psychiatric disability of any kind. The post-service medical evidence of record reflects that the Veteran has been assigned a variety of psychiatric diagnoses over the years, to include PTSD, bipolar disorder, acute psychosis with paranoia and depression, brief reactive psychosis, borderline personality disorder, manic depressive illness, and antisocial personality disorder. The Veteran underwent a VA examination in April 2011. The examiner reviewed the claims file. The examiner noted that the Veteran's stressor statement revealed that he came onto a scene in Vietnam 2 minutes after a man was accidentally shot with a cannon. The base that the Veteran was on was bombed at least peripherally, but the Veteran reported that he paid little attention to this. Upon examination of the Veteran, the examiner diagnosed the Veteran with an Axis I diagnosis of bipolar disorder, not otherwise specified; amphetamine and opioid abuse in full, sustained remission; and alcohol abuse in full, sustained remission. The examiner assigned an Axis II diagnosis of antisocial personality features. The examiner concluded that the Veteran has clearly met the DSM-IV TR criteria for an episode of mania on more than one occasion. He also has met the criteria for at least one episode of clinical depression; therefore, he qualifies for a diagnosis of bipolar disorder. The examiner noted that the Veteran does not meet the diagnostic criteria for PTSD. He does have a criterion A event in that he rescued a dead body shortly after the man was killed by a cannon, and he was horrified at that time. However, the Veteran stated that memories from prison and car accidents in his more recent past are much more troublesome for him today, and he very rarely has any thoughts about Vietnam. The examiner determined that the Veteran only very weakly meets criterion B for PTSD. He has only felt slightly upset if something reminds him of a stressful military experience from the past. He has not experienced any physical reactions when something reminds him of stressful military experiences from the past. The examiner determined that he does not meet criterion C for PTSD, the avoidance and numbing criteria. The examiner noted that three of these symptoms are required, and he only meets one of them, which is that he does avoid talking about stressful military experiences from the past to avoid having feelings related to it. The examiner determined that he does not meet any of the criterion D symptoms for PTSD, hyperarousal. The examiner concluded by noting that the Veteran's extensive history of drug and alcohol abuse is not related to military service. The examiner stated that the Veteran does not meet the diagnostic criteria for PTSD. He does meet the diagnostic criteria for bipolar affective disorder, not otherwise specified, as evidenced by his extensive drug abuse, but distinctive history of manic episodes and at least one depressive episode. The examiner stated that the Veteran's bipolar affective disorder is not caused by or a result of his military experiences. Also, the Veteran's history of amphetamine, opioid and alcohol abuse is not caused by or a result of his military experiences. Additionally, the Veteran's antisocial personality features are not caused by or a result of his military experiences. This same examiner reviewed the claims file again and offered an addendum opinion in January 2012 so as to provide a supporting rationale for the April 2011 opinion. Specifically, the examiner noted that there is no evidence that any mental illnesses were ever diagnosed or treated in the military. The Veteran denied a history of any significant mental illness symptoms, including denying any history of insomnia, nightmares, depression, worry, memory loss, amnesia, bedwetting, nervous trouble of any sort, any drug or narcotic habit, and any excess drinking habit, at the time that he was discharged from the military. The Veteran told me during the interview that his first manic episode occurred after his time in the military. There is also no evidence of any depressive episode ever occurring during the Veteran's military service, and, therefore, the examiner concluded that his bipolar affective disorder, not otherwise specified, began after his time in the military. There is no evidence suggesting that the Veteran's bipolar affective disorder is caused by or is a result of the Veteran's military service. There is no evidence that the Veteran's amphetamine, opioid, or alcohol abuse began during his time in the military. The Veteran's own statement from his January 1971 separation report of medical history form stated that he did not have any drug or narcotic habit or any excess drinking habit. There were never any disciplinary charges during the Veteran's time in the military for use of illegal drugs or for excessive alcohol use. Therefore, the examiner concluded that the Veteran's amphetamine, opioid, and alcohol abuse were not caused by or a result of the Veteran's military service. The examiner also noted that the Veteran informed him that he had not used any alcohol or illegal drugs for the past 14 years, so abuse of the above substances is not a recent problem at all and there is no current ascertainable disability from these substance use disorders. The examiner further stated that it is important to note that he did not diagnose the Veteran as having an antisocial personality disorder. He merely noted from his review of the Veteran's records and from his interview with him that he had some traits of antisocial personality. The antisocial traits that he noted include (1) the Veteran's failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest (the Veteran told him that he was put in prison in Boise, Idaho, in 1976 for 18 months for armed robbery. He has a history of felony possession of firearms. In 1993, he was placed in prison in Concord, New Hampshire, for 3 years for armed robbery. The Veteran stated he was in a lot of physical fights in prison.), and (2) impulsivity (as evidenced by things such as the Veteran's history of buying 3 cars in one day and his history of shooting and robbing stores). The examiner stated that there is no evidence that the Veteran's antisocial personality traits had their origin in military service (or are due to his military service) and to say so would be, in his medical opinion, resorting to mere speculation. As an initial matter, the Board notes that there is no evidence of record reflecting that the Veteran had a psychosis of any kind that manifested to a degree of 10 percent within one year from his separation from service. As such, service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.307. With regard to granting service connection on a direct basis, the Board notes that the claims file contains varying opinions as to the Veteran's current psychiatric disability, to include whether or not he has PTSD. In this regard, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Upon review of all relevant medical evidence of record, the Board finds the April 2011 and January 2012 VA medical opinions to be the most probative medical evidence of record on this matter. Specifically, the examiner reviewed the claims file in detail, thoroughly examined and interviewed the Veteran, and provided a detailed rationale for his opinions. The Board has considered the argument set forth in the April 2012 Appellate Brief Presentation that the April 2011 VA examiner did not consider the Veteran's report at that examination that he was put in prison in Boise, Idaho, in 1976 for 18 months for armed robbery and that shooting and robbing stores helped him forget all about Vietnam, that he felt like it was owed to him since he went off and fought a war. However, the Board finds no indication that the examiner did not consider these reports. The examiner specifically noted these assertions and simply found the other evidence of record weighed more strongly against relating a current psychiatric disability to service, as explained in the detailed rationale provided above. With regard to the remaining pertinent medical evidence of record, the Board finds that there is no evidence that the other medical opinions or diagnoses of record are based on a review of the claims file or such a thorough interview of the Veteran as conducted by the April 2011/January 2012 VA examiner. Additionally, these diagnoses or opinions are not supported by such a detailed rationale as in the April 2011/January 2012 VA examination report. Specifically, the Veteran was noted in a July 2004 letter from the Vet Center as having PTSD. However, there is no indication that this examiner reviewed the claims file in full, nor did this examiner offer a detailed rationale for this determination. Moreover, it was specifically noted that the Veteran suffered from ongoing intrusive nightmares and night sweats, is constantly "on guard" which may be the result of not just his Vietnam experience but his prison experiences as well. Therefore, it is unclear whether this examiner is even attributing his PTSD solely to the Veteran's military service. Likewise, the Veteran was noted in a January 1980 treatment summary from State Hospital South as having a brief reactive psychosis with paranoid features and a borderline personality disorder. However, there was no indication that the examiner reviewed the claims file or had access to the Veteran's service treatment records. Moreover, it was noted that the Veteran's stressors included severe, job-related injury, employment, drug abuse, wife's pregnancy, perceived harassment by police, and concern over Iranian crisis, as opposed to his military service. While this treatment record did indicate drug counseling would benefit the Veteran, even though it would be difficult for him to break with habits that have been developed since his college days and were further enlarged during his military experience in Vietnam, the Board notes that the Veteran has been noted in recent years as being in remission with regard to his drug and alcohol abuse. Additionally, the controlling law provides that service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service, but no compensation shall be paid if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). With respect to alcohol and drug abuse, section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Public Law No. 101-508, § 8052, 104 Stat. 1388, 1388-351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse. See 38 U.S.C.A. § 1131 (2012). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no medical evidence of record reflecting that the Veteran had a psychiatric disability of any kind, to include PTSD, in service, and the most probative medical opinion of record on the matter reflects that the Veteran does not have a current psychiatric disability or PTSD as a result of his active duty service. As such, the Veteran's claim must fail on a direct basis. See Shedden, supra. The Board acknowledges the Veteran's contentions that he has PTSD or a psychiatric disability as a result of his active duty. Further, the Board notes the contentions in the January 2013 Appellate Brief Presentation that, if not for his military service, his mental disorder would not have occurred, and that the Veteran's behavioral shift after his military service caused long-term problems with the law that would not have otherwise occurred. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran, as a lay person has not been shown to be competent to offer opinions on complex medical questions, such as whether he has a current psychiatric disability or PTSD is related to his active duty service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Thus, his lay assertions suggesting diagnosis and etiology are far outweighed by the April 2011 and January 2012 medical opinions provided by the licensed VA psychiatrist who had full access to the Veteran's medical history, to include his service treatment records, and offered a detailed rationale for his opinion. Additionally, the Board has considered the argument set forth in the January 2013 Appellate Brief Presentation that the fact that the Veteran completed a year of college shortly before induction into service is indicative of someone with the intent of being a productive member of society prior to his military experience. The representative requested that the Board compare and contrast the Veteran's progress before and after service. Likewise, in the April 2012 Appellate Brief Presentation, the representative asserted that the absence of "manic episodes" which resulted in criminal behaviors or substance abuse prior to the Veteran's military service and the subsequent manifestation of said behaviors after service suggest that his experiences in Vietnam played a role in the development of his mental condition. Further, the representative argued in the April 2012 Appellate Brief Presentation that the fact that the Veteran denied using illegal drugs or alcohol prior to joining the military would seem to support the Veteran's claim that his overall mental health deteriorated as a result of his military service. In this regard, the Board finds that it is not logical to assume that simply because the Veteran developed a psychiatric disability or a psychiatric disability manifested after service that this psychiatric disability had any relation to his service. The evidence of record does not contain any medical records relating to psychiatric complaints until 1979, approximately 8 years after his discharge from service. Even considering that he had psychiatric problems prior to 1979 due to the Veteran's allegations regarding his arrest in 1976, there is still no medical evidence of record reflecting that the Veteran experienced psychiatric problems within several years of his discharge of service. Therefore, it cannot reasonably be presumed that a deterioration in the Veteran's mental health several years after his discharge from service automatically equates to a relationship between his service and any current psychiatric disabilities. More importantly, the Board notes that the April 2011/January 2012 VA examiner specifically considered the Veteran's pre-military, military, and post-military history in rendering his opinions. Therefore, it clear that the history of the Veteran's psychiatric disabilities were fully considered before these medical opinions were rendered regarding etiology. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs