Citation Nr: 1306014 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-10176A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to August 1976, October 1990 to July 1991, and July 1992 to July 1993. He has extensive service in the National Guard. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO. The Board remanded the case to the RO for additional development, including VCAA notification and an examination, in January 2011. It has now been returned to the Board for the purpose of appellate disposition. The Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) held at the RO in January 2007. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to an innocently acquired psychiatric disorder during a period of active service or for several years thereafter 2. The Veteran is not shown to meet the psychiatric criteria warranting a diagnosis of PTSD. . 3. The Veteran is not shown to have an innocently acquired psychiatric disorder that is causally linked to an event or incident of a period of active service, including during his deployment during the Persian Gulf War, or a period of active duty for training. CONCLUSION OF LAW The Veteran does not have an innocently acquired psychiatric disability including PTSD that is due to disease or injury that was incurred in or aggravated by active service or a period of active duty for training; a personality disorder is not a disease or injury within the meaning of applicable legislation. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such defects are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in September 2004 which explained how VA could help him develop evidence in support of his claim and what the evidence needed to show in order to establish service connection for a claimed disability. A January 2011 letter, which was sent to comply with the Board's January 2011 remand, also explained VA's duty to assist the Veteran and what the evidence needed to show in order to establish service connection for a claimed disability. It also explained how VA assigns ratings and effective dates for service-connected disabilities. The Veteran's claim was most recently readjudicated in January 2012. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, service personnel records, VA treatment records, lay statements, and a transcript of the Veteran's testimony at the January 2007 hearing. The Veteran was also provided a VA examination in connection with his claim, as set forth in the January 2011 remand. Service connection The Veteran asserts that he developed PTSD or another mental disorder as the result of his experiences during military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including a psychosis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 CFR § 4.125(a), medical evidence linking current symptoms to an in service stressor, and, in some circumstances, credible supporting evidence that the claimed in service stressor actually occurred. 38 C.F.R. § 3.304(f). Prior to July 13, 2010, the evidence necessary to establish that an in service stressor actually occurred depended upon whether the Veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f); See also Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993). If the evidence showed that the Veteran engaged in combat with the enemy or was a prisoner of war (POW) and the claimed stressor was related to those experiences, 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, his lay testimony alone was sufficient to establish the occurrence of the claimed in service stressor. If, however, the Veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor was unrelated to the Veteran's combat or POW experiences, some evidence corroborating the Veteran's lay statements is required in order to establish that an in service stressor actually occurred. 38 C.F.R. 3.304(f)(2) (2009). The only other exception to the requirement for verification of an in-service stressor in effect at that time involved cases when the Veteran was diagnosed with PTSD during service and the claimed stressor was related to that service. In such cases, the Veteran's lay testimony alone was sufficient to establish the occurrence of the claimed stressor, absent clear and convincing evidence to the contrary, provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 C.F.R. 3.304(f)(1) (2009). However, in July 30, 2010 the exceptions to the stressor verification requirement were substantially expanded. The current 38 C.F.R. § 3.304(f)(3) states: 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 the 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 in service stressor. 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. The Veteran's service treatment records in this case do not show complaints or findings referable to an innocently acquired psychiatric disorder during a period of active service or active duty for training. On a form completed in April 1991, after he returned from a deployment in the Middle East, he denied having nightmares, trouble sleeping, or recurring thoughts about his experiences in Desert Storm. On a form dated in October 1993, after the Veteran's period of active service, he denied experiencing frequent trouble sleeping, depression or excessive worry. On a form dated in July 1995, he again denied having frequent trouble sleeping, depression or excess worry. A letter received in September 1996 from an associate of the Veteran indicated that, in November 2004, he appeared to be stressed. A letter from the Veteran's wife received in September 1996 related that, four months after his return from the Persian Gulf, she began to notice changes in his behavior and attitude. He became easily upset and depressed. This was different than his demeanor prior to his deployment. A second letter from the Veteran's wife was received in September 1997. She reiterated her observation that the Veteran's attitude and behavior had changed, and that he would be easily upset, was depressed, and had mood swings. He usually wanted to be alone instead of going out with friends. The Veteran was examined at VA in December 1997. At that time, he reported being exposed to combat in the Persian Gulf War. His primary duty was transportation support, and he drove a supply truck. The Veteran reported that he was scared of coming into the country and not knowing if he would be attacked and that he had a general fear of combat. At that time, the Veteran appeared to be experiencing moderate to severe depression and moderate anxiety. His depression was apparently a long term, habitual condition. He claimed that his depression and anxiety were continuous since his deployment and attributed his psychological condition to those experiences. The examiner opined that the Veteran's symptoms were not caused primarily by his experiences during military duty. His stressors were vague, more like an uneasiness with his situation in Saudi Arabia rather than exposure to well defined traumatic or stressful situations. His depression, anxiety and characteristics of personality disorder appeared to be more like habitual ways of responding due to exposure to a variety of situations in his life and his substance abuse. He also was experiencing some situational stressors. He abused drugs and alcohol. He was diagnosed with dysthymic disorder, alcohol abuse, and personality disorder not otherwise specified (NOS). The Veteran received psychiatric and addiction treatment at VA beginning in 1998. The diagnoses at that time included those of anxiety disorder NOS, rule out alcohol abuse, and rule out PTSD. In the early part of 2000 the Veteran was admitted to an inpatient psychiatric unit and discharged with diagnoses of anxiety disorder NOS and depressive disorder NOS. Subsequent diagnoses included psychotic disorder NOS, possible schizoaffective disorder, and PTSD, although no formal evaluation to diagnose PTSD appears to have been performed. An April 2004 treatment note indicated that although the Veteran was diagnosed with PTSD, the clinician was not sure that he really had PTSD from his Gulf War experiences. In a statement received in January 2005, the Veteran's daughter wrote that her father changed after his deployment. He would get upset easily, scream, and yell. He was afraid of loud, sudden noises and often wanted to be alone. He became quite forgetful. In a statement from the Veteran's wife received in January 2005, she wrote that, after his deployment, he became confrontational and would yell and push her. He had nightmares. He no longer wanted to participate in social activities and would sometimes cry. She felt that the war had changed him. On an undated stressor statement, the Veteran reported that his stressor was seeing dead bodies in Iraq and Kuwait while hauling water. In his March 2005 Notice of Disagreement, the Veteran reported that he saw dead, burnt bodies while hauling water during his deployment. In another stressor statement, the Veteran wrote that he saw and smelled dead, burnt, and decaying bodies between October 1990 and June 1991. The Veteran was again hospitalized by VA in June and July 2005. He was then diagnosed with mood disorder with mixed disturbance of emotion and conduct, PTSD by patient's history, history of cocaine and marijuana abuse, and a personality disorder NOS. The possibility of malingering was noted. He was also hospitalized in May 2006. At that time, his psychiatric diagnoses were listed as mood disorder with mixed disturbance of emotions and conduct, cocaine abuse, marijuana abuse, relational problems, suicidal and homicidal ideation, and a personality disorder NOS. The Veteran testified at a hearing before a DRO at the RO in January 2007. He reported seeing a lot of dead bodies during the time he was hauling water in Iraq. This was on one occasion between January and March 1991 and involved seeing a one mile stretch of cars and tanks with bodies in them. He had to drive through a mined area on another occasion. He felt tense because he had to carry live ammunition all the time and there were alarms indicating missiles had been fired. He testified he was currently being treated for PTSD at VA. The Veteran's wife testified that his behavior changed after his participation in the war. He started getting upset over small things and punched a hole in the wall. He also had nightmares. The Veteran participated in group therapy for PTSD throughout 2007. A June 2011 screening questionnaire suggested a diagnosis of PTSD. In another stressor statement the Veteran reiterated that his stressor was seeing dead bodies. He reported that he saw dead bodies all day while he was in Kuwait from August 1990 to November 1991. The Veteran was afforded a VA examination in August 2011. At that time, he reported serving in Desert Storm, but not having been wounded or injured in combat. He was retired from the National Guard and was working at a VA facility in the laundry. The examiner reviewed the prior examination report from December 2007. He noted that treatment for anxiety started around the same time as a positive cocaine screening. The Veteran had been in jail for an open container as well as abusing a patient at a mental retardation institute where he was working. There was a significant history of alcohol and marijuana abuse, but the Veteran seemed to minimize this. The Veteran was noted to have given a vague report about stressors, and the examiner who performed the 1997 evaluation was noted to have indicated that his problems were more characterological in nature. The more severe impairment of functioning was assessed to be due to substance abuse and personality disorder. The examiner noted that VA treatment records gave multiple diagnoses, including anxiety, alcohol abuse and cocaine abuse. The Veteran appeared to have been openly belligerent towards treatment providers, even being threatening towards some doctors. There was an indication of a PTSD diagnosis in 2004, but the examiner noted that the diagnoses had varied over time and thorough evaluations such as the 1997 evaluation tended to defer the diagnosis of PTSD and to note significant characterological problems and substance abuse issues. The most recent notes showed diagnoses including impulse control disorder NOS; major depressive disorder, severe, with psychosis; marijuana and cocaine abuse in remission; rule out PTSD; and a personality disorder NOS. The examiner indicated that the Veteran reported having symptoms including problems with anger, flashbacks, loss of memory and stress. It was noted that the Veteran had a history of an addiction to crack cocaine which explained many of his symptoms, especially mood lability, anger outbursts, hypersomnia, and perceptual distortions. While he reported feeling anxious, he actually described more angry feelings related to his work situations. He did not describe any particular anxiety symptoms. He reported that he might become depressed for hours, but not longer. He endorsed having crying spells, anhedonia, lack of appetite, feelings of worthlessness, reduced concentration, and hypersomnia when he was depressed. The Veteran reported having significant mood swings suggestive of mania, but this was better accounted for by his drug use. The Veteran reported having auditory hallucinations and general paranoia, which the examiner found were likely related to crack cocaine abuse. He had a history of violent reactions to minor stresses. When the Veteran was asked about specific PTSD symptoms, he did not report very much other than intrusive thoughts and occasional nightmares about dead bodies in Kuwait. He also said that he had "flashbacks." He does not describe typical avoidance symptoms that would not be accounted for by substance induced depressive symptoms. The Veteran reported having suicidal thoughts in the mid 1990s, but not now. He had homicidal thoughts regarding a particular coworker in the 2000s, and this precipitated his last hospitalization. The Veteran's description of his symptoms suggested some degree of embellishment. The Veteran reported a significant history of substance abuse, including alcohol, marijuana, and crack cocaine and said that he had been focused on cocaine since the 1970s. He got hooked on crack cocaine in 1989. While he reported using cocaine to cope with traumatic memories, he described starting cocaine use well before his deployment. The examiner explained that the Veteran did not meet the full criterion A for PTSD. While he did describe a generalized fear of hostile military or terrorist activity, he did not express this in relation to any particular traumatic stressor. Furthermore, he did not describe significant avoidance symptoms that would be required for a PTSD diagnosis, and prior examiners had not found full diagnoses of PTSD. The Veteran reported that his current problems were mainly anger and intermittent homicidal thoughts. He was usually able to take a walk and cool down. He was still romantically involved with his ex-wife and had about 10 friends, some of whom were out of town. He saw a couple of good friends once or twice a week and also spent time with his sister and would occasionally visit his daughter. The Veteran also reported having difficulty with concentration and short term memory and was observed to have difficulty with long term memory. The significant history of drug and alcohol abuse was noted to account for these cognitive difficulties. The psychological testing did not show significant signs of PTSD, but did note various personality disorder features. The Veteran showed signs of diffuse characterological problems, depression, and anxiety. He did produce a significant elevation on scales that could be reflective of PTSD, but did not meet the full criteria for this disorder. The examiner opined that he agreed with the earlier assessment of the Veteran which was that he did not meet the full criteria for PTSD. Rather, his mental health symptoms and functional impairment were better accounted for by other diagnoses including the substance dependence and personality disorder as well as an impulse control disorder that seemed closely linked to substance abuse. The VA examiner diagnosed cocaine dependence, polysubstance abuse, impulse control disorder NOS, substance induced mood disorder with depressive, manic, and anxiety features, and personality disorder NOS with antisocial, paranoid, and schizoid traits. The examiner opined that none of the Veteran's diagnoses appeared to be closely related to the Veteran's military service, rather they related primarily due to his history of misconduct and substance abuse. He did not find the existence of PTSD or any significant connection between his current symptoms and military service. The Veteran's fear of hostile military or terrorist activity was not related to any specific stressors that would meet criterion A for PTSD. It was less likely than not that the Veteran's other psychiatric disorders were related to military service. There was no indication of mental health problems during service. When asked about his substance abuse history, the Veteran described a long history of drug and alcohol abuse starting well before military service. He was using marijuana on an almost daily basis in the 1970s and started using powder cocaine in the 1970s and mushroom tea occasionally until he graduated to crack cocaine in 1989. This would be a couple of years before he went to Desert Storm. The evidence of record in this case does not show that it is at least as likely as not that the Veteran has an innocently acquired psychiatric disorder that was due to his active service or a period of active duty for training. While the Veteran had been diagnosed with PTSD, this was not based on a comprehensive evaluation to evaluate his mental status. In contrast, the Veteran was evaluated twice in connection with the claim when both examiners conducted thorough evaluations. Both examiners found that the Veteran did not meet the full criteria for PTSD; he related having vague stressors that were found to be insufficient to meet criterion A, and his symptoms were not characteristic of PTSD. As noted by the examiner who performed the August 2011 evaluation, the Veteran did not have the typical avoidance symptoms characteristic of PTSD. While the Veteran reported a fear of hostile military or terrorist activity, the examiners did not find that his generalized fear was specific enough to meet criterion A. Furthermore, his symptoms were noted not to be reflective of PTSD and were better accounted for by other diagnoses, including personality disorder and substance abuse. The Board has considered the statements of the Veteran's wife and daughter concerning behavioral changes that reportedly occurred after the Veteran returned from active service. While they reported changes in the Veteran's behavior after his deployment, their recollections of his behavior alone are not sufficient to diagnose a mental disorder. The Veteran might have behaved differently, but as laypersons, they lack the medical expertise necessary to explain the psychological reason for the Veteran's symptoms. Many of the symptoms were attributed to a preexisting substance abuse problem by the examiner who performed the August 2011 examination. The Veteran has not been diagnosed with PTSD by any examiner after careful and comprehensive evaluations. Moreover, his other psychiatric problems have not been shown to be related to his active service or any period of active duty for training, but rather were related by the examiner to factors such as character defects and a substance abuse history that predated the Veteran's service in Desert Storm. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of a claim. That doctrine is not applicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for an innocently acquired psychiatric disorder, including PTSD, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs