Citation Nr: 1309072 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 08-31 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for 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 K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In December 2009 and May 2011, the Board (in pertinent part) remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development, while granting service connection for an anxiety disorder. In November 2009 a Travel Board hearing was held before the undersigned; a transcript of that hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) has not been present at any time during the pendency of this claim. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence 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) (conforming to DSM-IV); 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. 38 C.F.R. § 3.304(f). Effective for all claims either received by VA or pending before VA as of July 13, 2010, the provisions of 38 C.F.R. § 3.304(f) were revised. These revisions have eliminated the requirement for corroborating the reported stressor event for cases where the stressor being claimed is related to the veteran's fear of hostile military or terrorist activity. For purposes of the revised regulation, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstances 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. 38 C.F.R. § 3.304(f)(3). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service personnel records show that he served on the USS Paricutin from September 1967 to February 1969. During part of this time the USS Paricutin operated in the Gulf of Tonkin in support of other ships, to include providing ammunition. The Veteran's service treatment records are negative for a diagnosis of PTSD or indication of PTSD. A June 2006 VA outpatient treatment record notes that the Veteran reported seeing a lot of death and gruesome scenes in his post-service work as a fireman and ambulance driver. Treatment records from the Minneapolis and St. Cloud VA Medical Centers dated from 2007 to 2008 show a formal diagnosis of PTSD from a licensed clinical psychologist and a licensed practical nurse. Specifically, a September 2007 VA outpatient treatment record notes that the Veteran screened positive for PTSD by an LPN. An October 2007 Mental Health Psychological Assessment notes the non-combat related stressors reported by the Veteran as: physical abuse from his father; carrying the bodies of nine family members out of a burned house just two days after he inspected the house for fire safety; and performing CPR as a fireman, including once on a little boy. The Veteran's symptoms (including intrusive thoughts, hypervigilance, exaggerated started response, avoidance behavior and anxiety) were noted, but the intensity and frequency of these symptoms were not noted. MMPI-2 testing was considered invalid due to extreme defensiveness. The licensed clinical psychologist noted a diagnosis of combat and non-combat related PTSD. In a statement received by the RO in November 2007, the Veteran generally mentioned the traumas he experienced while he was an ammunition loader aboard various ships during service. In a May 2008 notice of disagreement and in statements made during a November 2009 travel Board hearing, the Veteran alleged receiving fire from two small gunboats while he was aboard a U.S. Navy ship in the waters outside Vietnam. A January 2011 VA examination report notes the Veteran's history of child abuse, alcoholism and anxiety. After examining the Veteran and reviewing the claims file, the examiner determined that the Veteran did not meet the DSM-IV criteria for PTSD. Specifically, psychological testing revealed that PK Scale Score and Mississippi Scale Score were below the cutoff for PTSD. The examiner noted that the Veteran's symptoms appeared to meet the criteria for alcohol dependency, mixed anxiety and depressive disorder, in remission. Moreover, MMPI-2 testing was valid and interpretable, but not consistent with PTSD. It was noteworthy for a lack of emotional distress. A June 2011 VA examination report notes that the examiner reviewed the evidence in the claims file and interviewed the Veteran. On examination, the Veteran was alert, oriented and appropriate in presentation with appearance and communication. He reported a history of depression dating back to the 1970's with low mood, hopelessness (currently denied), helplessness, increased sleep, poor appetite, and isolation. His current complaints included problems with anger, withdrawal with anger and high levels of anxiety and nervousness. He denied general anxiety, obsessive-compulsive disorder, suicidal and homicidal ideation, hallucinations, delusions and paranoia. During the interview the Veteran discussed his military history, including information related to his most stressful experience while on the USS Paricutin from 1967 to 1969. He stated that because the ship carried ammunition, he experienced daily fear related to the possibility that it might explode. He denied any specific event as having occurred related to anyone being hurt, injured or killed. The examiner did not feel that this stressor met the criteria to support a diagnosis of PTSD by DSM-IV criteria related to a "fear of hostile military or terrorist activity." Regarding the Veteran's discussion about an attack on a ship from 2 small gunboats while in the Gulf of Tonkin, the examiner noted that he did report prior emotional reaction that represented endorsement related to experiencing fear and helplessness, but that he did not report experiencing intense fear and helplessness. Related to other criteria required to support a diagnosis of PTSD, the Veteran was noted to have denied any unwanted memories, flashbacks or emotional reactivity. He denied problems related to diminished interest or sense of foreshortened future, he did not meet Criterion C for PTSD. With relation to Criterion D symptoms, these were noted to be infrequent and mild in nature and therefore did not meet this criterion for a diagnosis of PTSD. The examiner found that the Veteran had not presented evidence of symptoms to support a diagnosis of PTSD. While there are clearly indications of PTSD in this record, after reviewing the evidence of record, the Board concludes that the record includes no medical treatment/evaluation report that shows a definite diagnosis of PTSD under DSM-IV. The credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such clinical data or other rationale employed by the physician and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the LPN is not considered qualified to conduct an initial PTSD examination. Neither the LPN nor the licensed clinical psychologist provided the basis for rendering a diagnosis of PTSD, as noted above. In contrast, the Board affords more weight to the 2011 VA the examination's opinions that show that the Veteran does not meet the diagnostic criteria for PTSD. These examiners clearly had the opportunity to review the Veteran's past medical records including those in which PTSD was considered. In addition, the examiners provided in-depth analysis of the Veteran's mental status and explained in detail why the criteria for a diagnosis of PTSD were not met. Therefore, the Board must conclude that the preponderance of the evidence is against the claim. In reaching this decision, the Board has considered the Veteran's statements. The Board observes that lay 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. In this case, the Veteran is competent to report his symptoms and that a medical professional diagnosed him with PTSD, but not to report that his symptoms are sufficient to constitute PTSD. Thus, the Board finds that his statements in support of this claim are only competent evidence that to the extent that he is reporting psychiatric symptoms and that a medical professional diagnosed him with PTSD. (The Board does not question the Veteran's experiences or his honorable service. Whether these had any effect on his present condition is a separate matter. In this regard, the Board must note that service connection has been granted for an anxiety disorder based on the Veteran's service by the Board in May 2011). While he might sincerely believe that he has PTSD due to service stressors, as a lay person, he is not competent to render a medical diagnosis. As discussed above, the medical evidence shows that he does not have PTSD. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that 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). The Board notes that the Veteran was provided with the appropriate notice, to include notice as to the disability rating and effective date elements of the claim, in a November 2007 letter (prior to the initial adjudication of the claim in March 2008). The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations for the issue decided herein. The record in this case includes service treatment records and personnel records, VA treatment records, VA examination reports, and lay evidence (to include hearing testimony). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Board is also not aware of any such evidence. The Veteran was afforded appropriate examinations in January and June 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the June 2011 examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient. Thus, the Board finds that further examinations are not necessary. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements, arguments and testimony. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER Service connection for PTSD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs