Citation Nr: 1306333	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  10-08 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic disorder (PTSD).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel

INTRODUCTION

The Veteran served on active duty in June 1971 to January 1976.

This matter came to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that denied entitlement to service connection for PTSD.

The Veteran presented testimony before the undersigned Veterans Law Judge at the RO (Travel Board hearing) in September 2012; the transcript of his hearing has been associated with the record.


FINDING OF FACT

An acquired psychiatric disorder, including PTSD, did not have its clinical onset in service and is not otherwise related to active duty.  


CONCLUSION OF LAW

An acquired psychiatric disorder, including PTSD was not incurred or aggravated during active duty service.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, 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.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in September 2008, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  This letter also informed him of the types of evidence that would be considered to substantiate his claim and the information and evidence needed to sustain a claim for service connection.  In addition, the letter met the notice requirements set out in Dingess.  Neither the Veteran nor his representative has alleged that notice has been less than adequate.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

Post-service medical records have been associated with the claims file.  In February 2012, the Veteran was afforded a VA examination to determine whether he has a psychiatric disorder, to include PTSD that is related to service.  The Board finds that the examination is adequate because, as shown below, they were based upon consideration of the pertinent medical history, his lay assertions, and because it described the disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

VA provided the Veteran the opportunity to have a hearing. The appellant testified before the undersigned Veterans Law Judge in January 2011.  In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the Veterans Law Judge explained the evidence necessary to establish the claim for service connection for PTSD, noting the Veteran's testimony regarding his stressor and soliciting testimony regarding a diagnosis and treatment for PTSD.  In addition, he inquired about outstanding medical evidence and dates of treatment. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

Service connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

A current disability must be present for a valid service connection claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998).  More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McLain v. Nicholson, 21 Vet. App. 319 (2007).

Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2011).  The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995).  VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation.  38 C.F.R. § 3.310(b). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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.  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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2).

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.  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.  See 38 C.F.R. § 3.304(f)(3; 75 Fed. Reg. 39843 - 39852 (July 13, 2010).

The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

At his Travel Board hearing, the Veteran claimed that he has PTSD as a result of several stressors in service.  The Veteran has reported three different stressors associated with his active duty in Vietnam.  Service personnel records confirm that the Veteran served in Vietnam from March 1972 to March 1973.  

First, the Veteran has reported that he was assigned to night time guard duty within one week of his arrival in Vietnam, and that a trip wire went off and he heard people crossing the line.  He fired his rifle in response to this without providing a warning, even though he was instructed not to, because he feared for his life.  Also, he reported that he was sent to Can Tho as a supply clerk, but that he fulfilled the duties of a door gunner on a helicopter, and went on several missions.  Finally, he indicated that he was sent to Long Binh, and that while he was in formation, two 105 mortar rounds landed and blew up the hanger.  He reported that he thought he was going to die.  See May 2009 stressor statement, January 2010 Form 9, September 2010 statement, March 2011 statement, February 2012 VA examination, and September 2012 Travel Board hearing transcript.  

The Veteran submitted two statements from a VA provider who treated the Veteran from September 2008 to July 2011 and again in September 2012.  This examiner noted that the Veteran had been diagnosed with PTSD.  In the statements, the examiner referred to stressors reported by the Veteran that included going on numerous firefights as a door gunner un a helicopter, when he was involved in numerous attacks on villages and witnessed violent deaths and injuries, and working on guard duty at the demilitarized zone (DMZ), having to shoot someone trying to cross over.  See April 2009 and October 2012 statements from C.S., M.D.

The Veteran was provided with a VA examination in February 2012.  At this time, the Veteran reported that he did not see anyone wounded or killed while he was on active duty.  This examiner reviewed the Veteran's VA medical records and noted that the Veteran had multiple negative screens for mood disorders and PTSD through January 2008.  In July 2008, he had an initial mental health evaluation and was diagnosed with PTSD and polysubstance dependence.  It was also noted to rule out substance induced mood disorder, bipolar disorder and schizoaffective disorder.  He did not report for PTSD evaluations scheduled in August 2008, but was enrolled in telepsychiatry for treatment of PTSD, cocaine dependence (in remission) and THC (tetrahydrocannabinol) abuse.  He was officially discharged in July 2011 because he did not report to several sessions.  The examiner found that, although the Veteran had been previously diagnosed with PTSD, he did not meet the DSM-IV criteria for a diagnosis of PTSD, since he did not endorse a majority of symptoms related to PTSD.  The examiner diagnosed cocaine dependence, in remission, and noted that he did not currently meet the criteria for another Axis I disorder.

In assessing the evidence of record, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).  The competence of evidence, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the credibility of such evidence is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker, 10 Vet. App. at 74.  See also Layno, supra. 

The Board notes that there are conflicting medical opinions in the record.  Where the Board is presented with conflicting medical evidence, it 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 regard, the Board notes that the Federal Circuit and the Court have both specifically rejected the "treating physician rule."  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Instead, the Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases).

The VA examiner who provided the opinions in April 2009 and October 2012 based the diagnosis of PTSD on stressor statements that are not consistent with other statements of record.  The Veteran has contradicted himself with regard to reporting the details of his stressors.  In his statements to the RO and at his Travel Board hearing and VA examination, he did not endorse seeing anyone wounded or die while on active duty.  In fact, at his February 2012 VA examination, the Veteran specifically stated that he had not seen anyone wounded or killed while he was on active duty.  The examiner also noted that the Veteran reported shooting someone who had crossed the line while working as a guard in the DMZ.  This, too, is not consistent with the evidence of record.  While in other statements the Veteran has recounted an incident while he was in a position as a guard in a tower and shot his rifle, he has never endorsed actually shooting anyone.  In addition, this incident, described repeatedly by the Veteran in connection with his claim, allegedly occurred within a few weeks of his arrival in Vietnam, and not in the DMZ.  

As the Veteran's stressor statements to this examiner are inconsistent with the rest of the record, the April 2009 and October 2012 opinions of the VA provider are entitled to no probative weight as they are based on an inaccurate factual premise.  The Board is not bound to accept medical opinions that are based on history supplied by the Veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background.  Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993).  

The February 2012 VA examiner found that the Veteran did not have PTSD.  In providing this opinion, the examiner considered the Veteran's treatment records, including the multiple negative screens for PTSD and other acquired psychiatric disabilities, and the symptoms endorsed on examination, and came to the conclusion that he did not meet the criteria for a diagnosis of PTSD.  The report is detailed, reflects a thorough and accurate review of the record, a recitation of the Veteran's history and a mental status interview.  It is the most probative evidence of record.  

The Board notes that the only medical evidence of record reflecting a diagnosis of PTSD is from his VA provider, who based his opinion, in part, on incredible stressor statements from the Veteran.  As such, there is no competent medical evidence of record showing that the Veteran has PTSD that is related to service.

The Veteran has also been diagnosed with polysubstance and cocaine dependence, which was in remission at the time of this February 2012 examination.  The Board notes that with respect to claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. The law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability.  Allen v. Principi, 237 F.3d 1368 Fed. Cir. 2001).  However, the Board has determined that service connection is not warranted for an acquired psychiatric disorder.  Therefore, service connection for polysubstance and cocaine dependence is not warranted.

The Veteran has contended that he has PTSD that is related to service.  The Court has held that lay persons are competent to provide opinions on some medical issues.  see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  However, the issue of whether the Veteran has a diagnosis of PTSD related to his active duty falls outside the realm of common knowledge of a lay person.  While the Veteran is competent to describe his symptoms and stressors that occurred to him in service, he is not shown to have the medical expertise to diagnose psychiatric disability and the Board finds that diagnosing and identifying psychiatric disability requires medical expertise that the Veteran is not shown to possess.  His descriptions of stressors in service have been found not to be credible, and his reported symptoms were considered by the February 2012 VA examiner and, in his opinion, did not meet the criteria for a diagnosis of PTSD.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  

In view of the aforementioned, there is no basis for granting service connection for an acquired psychiatric disorder, to include PTSD in this case.  There is no basis for reasonable doubt so as to resolve this matter in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  Thus, the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD is denied.


ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, is denied



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs