Citation Nr: 1308530 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 06-34 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for anxiety disorder, not otherwise specified (NOS), and depression. 2. Entitlement to service connection for an acquired psychiatric disorder other than anxiety disorder, NOS, and depression, to include posttraumatic stress disorder (PTSD) and bipolar disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2007, a hearing was held at the RO. In July 2009 and September 2011, the Board remanded the matter for further evidentiary development. In September 2011, the Board rephrased the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim 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). Considering the recent VA examination, the Board has further recharacterized the issues as stated above. The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. The evidence is at least in relative equipoise on the question of whether the Veteran's anxiety disorder, NOS, and depression are related to service. 2. The preponderance of the evidence is against finding that the Veteran has a confirmed diagnosis of PTSD. 3. The preponderance of the evidence is against finding that currently diagnosed bipolar disorder is related to active military service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, anxiety disorder, NOS, and depression were incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. PTSD and bipolar disorder were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the RO provided the Veteran with the notice required under the VCAA in a pre-rating letter dated in August 2004, and post-rating letters dated in March 2006 and August 2007. The matter was most recently readjudicated in a September 2012 supplemental statement of the case (SSOC). 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). In this case, VA obtained the Veteran's service treatment and personnel records, records from the Social Security Administration (SSA), and identified post-service treatment records. In addition, the Veteran was provided with VA examinations in January 2005, July 2006, April 2009, November 2011, and a supplemental medical opinion was provided in December 2011. In May 2011 statements, the Veteran and his brother essentially argued that the April 2009 examination was inadequate. The Board has reviewed the report and notes that it is extremely thorough. The examiner clearly reviewed the claims file in detail, considered the Veteran's military service and his reported symptoms, and provided a rationale for her opinion. The competency of a VA examiner is presumed, absent a showing of some evidence to the contrary. See Hilkert v. West, 12 Vet. App. 145, 151 (1999). On review, the Board finds that the overall medical evidence is adequate to make a determination on these claims. In this regard, the Board notes that the November 2011 examination and December 2011 medical opinion included a review of the pertinent medical history, clinical findings, and diagnoses, and was supported by medical rationale. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. Legal Criteria 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; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability, however, is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2011). Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The regulations governing PTSD were 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 claimed stressor 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran asserts that his current psychiatric disorder is related to his military service in Vietnam. Specifically, he originally filed a claim of service connection for PTSD based on several stressors, including cleaning medivac helicopters, several attacks on the airfield where he was stationed, and witnessing military and civilian casualties during his tours in Vietnam. Service personnel records show that the Veteran served in Vietnam from February 1970 to January 1971 and from July 1971 to March 1972. His military occupational specialty was helicopter repairman. Information in the claims folder indicates that the RO was able to confirm that the Veteran's unit came under attack and suffered casualties. Additionally, the claimed stressors involve fear of hostile military activity and are consistent with his service; however, as noted above, a diagnosis of PTSD is required before a grant of service connection can be made. As will be explained below, the weight of the evidence indicates the Veteran does not have a confirmed diagnosis of PTSD. Rather, the Veteran has an anxiety disorder, NOS, resulting from his military experiences and the Board finds that service connection is warranted for this disability as well as depression. The Veteran also has been diagnosed with bipolar disorder; however, the evidence does not indicate that this is related to his service. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses associated with a psychiatric disorder. The Veteran's psychiatric evaluation at enlistment was normal. In May 1971, he was treated for a migraine headache and hyperventilation syndrome; he has alleged that these problems were due to the traumatic events he experienced while in Vietnam. At his April 1972 discharge examination, his psychiatric evaluation was normal. An August 2004 VA social work progress note reflects the Veteran's initial visit. He complained of panic attacks, intrusive thoughts, difficulty sleeping, and memory problems. It was noted that he was apparently struggling with symptoms of PTSD. VA outpatient treatment records dated from December 2004 to July 2006 reflect that the Veteran received ongoing treatment and was variously diagnosed with anxiety, depression, depressive disorder, depressive disorder with anxiety features, PTSD, and alcohol abuse. The report of a January 2005 VA examination reflects that the Veteran primarily complained of anxiety, temper problems, and difficulty establishing social relationships. He said he very rarely had dreams of his combat experience and estimated that intrusive thoughts might occur once or twice a year. The examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) based on the infrequency of intrusive thoughts and recollections of war. Rather, the examiner diagnosed the Veteran with anxiety disorder, NOS. The examiner did not render an opinion as to the etiology of the anxiety disorder. VA outpatient treatment records dated from February 2009 to approximately August 2012 reflect that the Veteran received ongoing treatment. Diagnoses included PTSD, depression, NOS, and alcohol abuse in partial remission. The report of a July 2006 VA examination reflects that the Veteran primarily complained of problems with anger, depression, and frustration. He said he sometimes thought about the experiences he had in Vietnam, especially the poverty and the children. The examiner diagnosed the Veteran with depressive disorder with anxiety. It was noted that the criteria for PTSD were not met. The report of a December 2008 mental status examination conducted by a clinical psychologist for the SSA indicates the Veteran was diagnosed with depressive disorder secondary to his medical problems. Rule out PTSD was also noted. The report of an April 2009 VA examination reflects that the Veteran primarily complained of problems associated with his physical disabilities. He reported being frustrated, angry, and depressed. He also endorsed having memory problems and a history of alcohol abuse. The examiner diagnosed the Veteran with bipolar affective disorder, mixed, nonpsychotic, and situational depression secondary to his lack of sight. The examiner did not render an opinion regarding the etiology of the Veteran's bipolar disorder. The Veteran most recently underwent a VA examination in November 2011. At that time, he primarily complained of depression, racing thoughts, daytime fatigue, difficulty focusing, sleep problems, and anger. The examiner diagnosed the Veteran with mixed type bipolar disorder and anxiety disorder, NOS. The examiner explained that the Veteran met the criteria for bipolar disorder based on hypomanic and depressive episodes. Although he met the criteria for an anxiety disorder based on his Vietnam experiences, the examiner opined that the criteria for a diagnosis of PTSD were not met. In a December 2011 supplemental opinion, the examiner further opined that the Veteran's anxiety disorder was at least as likely as not related to his Vietnam stressors. The bipolar disorder, however, was less likely than not related to the Veteran's military service or stressors. With regard to the bipolar disorder, the examiner noted that he did not have treatment during service and he denied bipolar symptoms during service. He described bipolar symptoms for the last 5-10 years. Due to the extended gap of time between service and the initial diagnosis it was less likely related. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the December 2011 VA opinion relating the Veteran's anxiety disorder, NOS, to his military service is probative and persuasive based on the psychologist's thorough and detailed evaluation of the Veteran, comprehensive review of the claims file, adequate rationale, and consideration of the Veteran's lay statements in regards to his symptomatology. In addition, there are no contrary competent medical opinions of record. At the very least, the Board finds that the Veteran's lay statements, along with the December 2011 opinion, permit application of the reasonable doubt doctrine. Thus, service connection is warranted. Medical evidence of record includes diagnoses of both depressive disorder and depression, which have been related to various etiologies, to include medical problems or as part of bipolar disorder. The Board notes, however, that the Veteran has been diagnosed with anxiety/depression and depressive disorder with anxiety. Considering the Veteran's reported psychiatric symptoms and resolving all reasonable doubt in his favor, the evidence is in relative equipoise as to whether depression is related to service or is associated with the now service-connected anxiety disorder. Accordingly, service connection for depression is also established. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Regarding PTSD, the Board finds that the most competent evidence indicates that he does not meet the criteria for a diagnosis of PTSD under the DSM-IV. All four VA examiners agreed that the Veteran did not meet the criteria for a diagnosis of PTSD. Although the July 2006 VA examiner did not provide a rationale for his/her opinion, the other examiners did so. The January 2005 examiner explained that the Veteran did not exhibit re-experiencing frequently enough to meet the criteria. The April 2009 examiner reported that the Veteran could not describe specific PTSD symptoms that were present including trauma re-experiencing, avoidance numbing, heightened physiological arousal, or associated features. The November 2011 examiner indicated that the Veteran did not have persistent re-experiencing or increased arousal. In sum, the Board finds the January 2005, April 2009, and November 2011 opinions especially probative as they were based on reasoned explanation with specific discussion of the criteria outlined in the DSM-IV. The Board acknowledges that the Veteran's treating psychiatrists at VA diagnosed him with PTSD. Presumably the diagnoses were made based on clinical evaluation of the Veteran and therefore are afforded some limited probative value. However, the Court has declined to adapt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-3 (1993). Here, neither physician provided the rationale for the diagnosis. Therefore, their opinions are afforded less probative weight than those of the VA examiners described above. With respect to the Veteran's bipolar disorder, the most competent evidence indicates that the disorder is not related to his military service. The November 2011 VA examiner opined that bipolar disorder was less likely related to service based on the Veteran's reported history. There is no medical opinion to the contrary. To the extent the Veteran asserts that his bipolar disorder is related to service, the Board notes that as a layperson, he is not competent to provide an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, the more probative evidence shows that the Veteran does not meet the criteria for a diagnosis of PTSD. Thus, service connection cannot be established. See Brammer. Furthermore, the Board finds that the preponderance of the evidence is against the claim of service connection for bipolar disorder and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for anxiety disorder, NOS, and depression is granted. Service connection for PTSD and bipolar disorder is denied. ______________________________________________ M. CARSTEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs