Citation Nr: 1308036 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-06 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from September 1969 until September 1971, including a tour of duty in the Republic of Vietnam from February 1970 until December 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran provided testimony at a February 2009 hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board previously considered this appeal in July 2009, and remanded the claim for additional development. The RO/Appeals Management Center (AMC) completed all requested development, and the case has now been returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has recharacterized the issue of entitlement to service connection for PTSD to the broader issue of entitlement of service connection for an acquired psychiatric disability, as is reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (noting that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In a June 2012 Informal Hearing Presentation, the Veteran's representative indicated prior records suggested the Veteran was seeking service connection for hypertension as secondary to PTSD. The Board notes that service connection for hypertension was previously denied by the Board in a February 2009 decision and the decision below denies service connection for PTSD. It is unclear whether the Veteran still seeks to reopen a claim for service connection for hypertension, to include as secondary to PTSD. Clarification as to this matter is REFERRED to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran does not have a currently diagnosed psychiatric disability that is related to active service; the preponderance of the evidence shows that he does not have a current psychiatric disorder, and that post-service episodes of anxiety and depression have been situational rather than related to his in-service experiences. CONCLUSION OF LAW The criteria for a grant of service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice as to how a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In this case, notice has been provided to the Veteran by way of letters in May 2006, June 2008, July 2008, July 2009 and March 2011. The claim was subsequently readjudicated in an October 2011 supplemental statement of the case. Thus, although VCAA notice is generally be provided prior to initial adjudication of the claim, any defect as to timing is no more than harmless, nonprejudicial error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record includes service treatment and personnel records, private medical records and a VA examination report. The Board notes that the Veteran reported that he received treatment from three different private physicians for a number of ailments, ranging from a common cold to minor surgery. Significantly, the RO sent the Veteran a letter in March 2011 requesting he submit a separate authorization for each health care provider so they could obtain the records. The Veteran did not respond to this letter. The Board notes that these providers were identified in connection with his claim for ischemic heart disease. Additionally, the Veteran has not specifically indicated that he received treatment for a psychiatric disorder from any of these physicians. On this point, during a September 2011 VA examination, the Veteran denied outpatient treatment and hospitalizations for a mental disorder (although the examiner did note findings of situational depression and anxiety in the claims file, which, as the Board will discuss further below, were rendered at treatment pre-dating the filing of his currently appealed claim). In light of the above, the Board finds a remand solely to search for these records is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). It has been held in this regard that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran provided testimony at a February 2009 Board hearing. During the hearing the undersigned Veterans Law Judge elicited testimony concerning the claimed PTSD stressors and identified the fact that the service personnel records were not in the file. Subsequently, the Board remanded the claim to obtain service personnel records, seek verification of the stressor and obtain a VA examination. All of the remand directives have been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) ("a remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders."). The actions of the undersigned at the hearing are in accordance with the duty owed to an appellant during a hearing, and those conducted in the Board's subsequent remand cured any remaining deficiencies with respect to the duty to assist or duty to notify. The Board finds the September 2011 VA examination is adequate as the examiner reviewed the claims file, considered the Veteran's subjective history and complaints and performed a thorough psychiatric examination providing all necessary findings to evaluate the claim. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a report of a VA examination and opinion is based on whether the it is factually accurate, fully articulated, and soundly reasoned). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Merits of the Claim The Veteran seeks service connection for an acquired psychiatric disability, to include PTSD. Specifically, he contends his current psychiatric disability is related to an incident during his service in Vietnam where a Chinook helicopter sustained incoming mortar fire while picking up troops, resulting in a crash and explosion that killed everyone on board. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Service connection may also be awarded if a chronic disease, as designated by statue and VA regulation, see 38 U.S.C.A. § 1101 & 38 C.F.R. § 3.309(a), such as psychoses, see 38 C.F.R. § 3.384, manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, ---F.3d ---, No. 2011-7184, 2013 WL 628429, *5-6 (C.A. Fed. Feb. 21, 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 2013 WL 628429, at * 4. 38 C.F.R. § 3.384 defines psychosis as including a 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. 38 C.F.R. § 3.384. Service connection may be granted for any disease diagnosed after discharge, when all 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 generally requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an inservice stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Id.; 38 C.F.R. § 4.125(a). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran's fear of hostile military or terrorist activity; or (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304 (f)(1), (f)(2), (f)(3), (f)(4). In any of the above situations, the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304 (f)(1), (f)(2), (f)(3), (f)(4). For stressors relating to fear of hostile military or terrorist activity, the regulations specify that lay testimony will be accepted if : (1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; (2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, 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; (3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and (4) there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). Fear of hostile military or terrorist activity is defined as occurring when 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 has not been diagnosed with a psychosis, either as defined by 38 C.F.R. § 3.384 or otherwise, and thus, the provisions of §3.303(b) and 3.307 are inapplicable to this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker, 2013 WL 628429, at * 5. Service treatment records do not reflect complaints, treatment or diagnosis of any psychiatric disorder. The August 1971 examination performed in connection with the Veteran's separation from service indicated the psychiatric system was normal and the Veteran attested that he was in good health. This is probative evidence of singifincat weight indicating that the Veteran did not have a psychiatric disorder at the time of discharge from service. As will be discussed further below, the record includes private treatment records that reflected symptoms and diagnosis of anxiety and depression. As an initial matter, the Board notes that all of these diagnoses were prior to the Veteran's appeal. Thus, these records are not records of current disability for the purpose of the Veteran's claim for VA compensation. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). Significantly, as will be discussed further below, a September 2011 VA examiner concluded that the Veteran has no psychiatric disorder--there were no Axis I or Axis II diagnoses. Further, while the Veteran has reported inservice exposure to mortar fire and other combat incidents, including a stressor that is accepted as an inservice event constituting an episode of fear of hostile military activity, the evidence does not link the post-service anxiety and depression to these events. In May 2002 the Veteran presented with multiple situational difficulties and the Veteran explained that he was having marital problems. The assessment was multiple situational difficulties with secondary exogenous depression. A follow-up record dated in May 2002 continued to diagnose situational difficulties with depression. A February 2005 report of S.E.G., M.D. noted complaints of stress, anxiety and possible mild depression and noted difficulties at work as he was a whistle blower in a federal lawsuit against his company. Dr. G. concluded the Veteran had "anxiety as related to work environment with possible mild depression underlying." In this regard, the September 2011 VA examiner's impression that the private treatment records showed a history of anxiety and depression that were clearly secondary to situational factors at the time is a medical opinion of significant probative weight that is consistent with the evidence in the claims file. In other words, the medical evidence that reflects diagnoses of a post-service psychiatric disorder relates the conditions to marital and employment trouble and made no mention of the inservice stressor or other incidents or circumstances of service. These reports were prepared at a time when the Veteran was not seeking VA compensation; the Veteran's purpose in relaying the history was to obtain an accurate diagnosis and treatment for her condition. The history as related by the Veteran is competent and reliable and the treating clinician's impressions based on this history, that the Veteran's depression and anxiety were situational, are of significant probative weight. The history related by the Veteran at that time and treatment impressions do not support a finding that the Veteran experienced a psychiatric disability related to service, but rather are evidence of significant probative weight of situational episodes of depression and anxiety prior to the filing of his claim for service connection for PTSD in May 2006. Importantly, in the present case, although the Veteran's reported stressor relates to fear of hostile military or terrorist activity, the Veteran does not have a current diagnosis of PTSD, or other psychiatric disorder. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (in order to prevail on the merits on the issue of service connection, there must be evidence of current disability). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). The Veteran was afforded a VA examination in September 2011. The examiner reviewed the claims file, considered the Veteran's subjective history and performed a mental status examination. The examiner noted the Veteran's stressor of the helicopter crash and also indicated that the Veteran's base was frequently hit with mortars towards the end of his tour in Vietnam. The Board accepts this evidence as competent and credible evidence, of a high probative weight, that the Veteran experienced episodes of fear of hostile military activity during active service. The Board finds that the Veteran was exposed to combat, and that this lay evidence of what amounts to psychiatric injury is essentially unrebutted. See 38 U.S.C.A. § 1154(b) (in the case of any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incidence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran). The Veteran's in-service combat experiences have had lasting impact. The September 2011 examiner noted the Veteran had symptoms such as recurrent and intrusive distressing recollections of the helicopter crash, including images, thought or perceptions. The Veteran also made efforts to avoid thought, feelings, or conversations associated with the stressor and had a restricted range of affect. The examiner indicated the Veteran had occasional memories of events in Vietnam but could usually dismiss them quickly. Hearing helicopters triggered memories and he also had occasional dreams but no specific content was noted. However, the Veteran scored below the cutoff commonly used as consistent with a PTSD diagnosis on the Psychopathy Checklist (PCL). The severity of symptoms was noted to be mild. After considering the record and the results of the examination, the examiner concluded that although the stressor met the DSM-IV criterion, the Veteran did not meet the criteria for a PTSD diagnosis and indicated there were no Axis I or Axis II diagnoses. The examiner explained that by the Veteran's description his life was good and his functioning and limited symptoms were consistent with the assessment. The examiner's opinion is well-reasoned, consistent with the evidence of record, and of a high probative weight. The Board accepts the Veteran's assertions of experiencing episodes of anxiety and depression as competent and credible assertions of his emotional state, and to be of significant probative weight. However, the Board finds of greater probative weight the well-reasoned and well-supported opinion of a September 2011 VA examiner that, notwithstanding his difficulties as he reports them, he does not have a current psychiatric disorder. Whether the Veteran's difficulties amount to a psychiatric disorder is a matter on which the VA examiner's opinion carries a greater probative weight than the lay-impressions of the Veteran. On this point, the Board notes that the September 2011 VA examiner is a competent medical professional in his field, a Ph.D. psychologist practicing in the area of behavioral medicine. The Board does not doubt the Veteran is sincere in his belief that he has a psychiatric disorder that is related to the stressor of a helicopter crash during service. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ STEPHEN L. HIGGS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs