Citation Nr: 1309150 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-18 016 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from September 1973 to July 1976. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision. In September 2012, the Board reopened the Veteran's previously denied claim and remanded it for additional development. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). As noted in the Board's September 2012 remand, the Veteran requested a video conference Board hearing in his April 2010 substantive appeal. He was sent a letter indicating that he was scheduled for a Travel Board hearing in April 2010. The Veteran failed to appear at the scheduled proceeding. He did not request to reschedule the hearing and he has not provided good cause for his failure to appear. Accordingly, the Board will review his appeal as if he withdrew his hearing request. See 38 C.F.R. § 20.702(d) (2012). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not currently meet, nor has he met at any time during the course of his appeal, the DSM-IV criteria for a diagnosis of PTSD. 2. The weight of the evidence is against a finding that the Veteran's acquired psychiatric disability, other than PTSD, either began during or was otherwise caused by his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). During the course of the Veteran's appeal, the provisions relating to the establishment of service connection for PTSD, found at 38 C.F.R. § 3.304(f), were amended effective July 13, 2010. See 75 Fed. Reg. 39,843-39,852 (Jul. 13, 2010) and 75 Fed. Reg. 41,092 (Jul. 15, 2010) (effectuating a correction to the July 13, 2010 Federal Register). Specifically, 38 C.F.R. § 3.304(f) was amended to read that 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. The Veteran contends that he is currently diagnosed with PTSD as a result of his participation in the evacuation of Saigon while aboard the USS Oklahoma City in 1975. The Veteran was discharged from service in July 1976. In March 2002, he first filed a claim seeking service connection for PTSD; that claim was denied and the Veteran most recently sought to reopen his claim in 2009. The Board did reopen the Veteran's claim in 2012, but then remanded it for additional development. This development having been completed, the Board will turn to the merits of the Veteran's claim for service connection. During the course of the Veteran's initial appeal, he testified at a hearing before the Board, explaining that he was a journalist on the USS Oklahoma City in approximately April 1975 when they assisted in the evacuation of Vietnam. The Veteran stated that they evacuated the embassy staff, other Americans and some Vietnamese citizens by helicopter and delivered them to the ship, which he described was a rather chaotic situation. His responsibilities were to report on the evacuation including photographs and video. When was asked what symptoms he attributed to the experience, he stated that he had experienced nightmares. The Veteran later testified that he was subsequently attached to a Seabee unit and he refused a direct order to participate in war games. However, the Veteran mainly refers to the evacuation as the primary event which he believes caused him to develop PTSD. Evidence shows that Saigon was evacuated in April 1975 and that the USS Oklahoma City participated in the evacuation. As such, the Veteran's participation in that event is conceded. However, the occurrence of a stressful event alone is insufficient to warrant service connection for PTSD. Rather, such an event must be shown to cause PTSD. The Veteran's service medical records show that he had a psychiatric clinic consultation in April 1976 and was diagnosed with a passive-aggressive personality that was determined to have existed prior to enlistment and to be moderately severe. However, no Axis I psychiatric diagnosis appears to have been rendered. The Veteran was referred by his command due to his non-productive activity of trying to get out of the Navy, difficulty with superior officers, not going through the chain of command, and generally being disliked. The medical officer found that the Veteran's service record showed low performance marks throughout, which he attributed to personality conflicts. The Veteran did not express any motivation for further service. The medical officer found that after an adequate period of evaluation the appropriate diagnosis was passive-aggressive personality disorder which existed prior to service and was chronic and moderately severe. It was recommended that the Veteran be administratively separated from duty on the basis of the diagnosis. There are no other relevant complaints, findings, treatment or diagnoses during the remainder of the Veteran's service; and his July 1976 discharge medical examination report shows that a clinical psychiatric evaluation was normal. No psychiatric treatment appears to have been received for a number of years following the Veteran's separation from service. In January 2005, a PTSD screen was positive. In February 2005, the Veteran underwent a private psychological examination. The Beck Depression Inventory-II revealed significant levels of depression, as well as severe feelings of hopelessness and pessimism about his current and future life situation. The psychologist diagnosed the Veteran with depressive disorder, rule out PTSD; and noted that the traumatic event the Veteran alluded to in his interview (that is the evacuation) was mild to moderate compared to other combat-related traumatic exposures. In May 2005, the Veteran underwent a VA examination at which he reported sleeping poorly, with a past history of nightmares that were rare at the time of the examination. The examiner noted that the Veteran had some mild depression, but did not show any other significant symptoms. The Veteran did not have any significant issues with nervousness or irritability, he had some difficulty sleeping which the examiner related to the depression and being overweight. The examiner diagnosed the Veteran with mild dysthymic disorder. In March 2006, the Veteran underwent another private examination. The Veteran was asked about the nature of his disability, to which he responded that he was dealing with PTSD. The psychologist diagnosed the Veteran with PTSD and with adjustment disorder, but provided no indication as to how the Veteran met the DSM-IV criteria for PTSD. In May 2007, the Veteran underwent another VA examination. The examiner acknowledged the Veteran's participation in the evacuation of Saigon, and noted his reports of poor sleep with occasional nightmares in the past, but without nightmares at the present. The Veteran was vague when asked about having intrusive thoughts about the events in Saigon in 1975. The examiner observed that whatever thoughts that the Veteran had about the events, they did not seem to be a very important feature of his cognitive processes. The Veteran asserted that he was able to talk about the experiences on some occasions, but not on others. The examiner diagnosed the Veteran with mild depressive disorder. The examiner acknowledged that the Veteran was exposed to some degree of stress during the evacuation, which was stressful to him. However, the examiner observed that the Veteran did not seem to be in significant danger at the time. The examiner stated that while the situation was possibly frightening to the Veteran, he did not think that it qualified as a true stressor in the sense intended by the DSM-IV. The examiner noted that for a diagnosis of PTSD, reexperiencing of a stressor was important, but the Veteran did not reexperience the situation in a way that would meet the criteria for reexperiencing. The Veteran was noted to have experienced nightmares over the years, including about the evacuation, but he denied having them when he slept in a recliner, which he had been doing for approximately fifteen years. The Veteran reported occasional intrusive thoughts about the events, but the examiner noted that in discussing them at the examination, it did not appear that they were actually distressing for him, even if he did in fact think about them. The Veteran did have some avoidance, numbing and increased arousal that might meet the requirements for PTSD. However, the examiner explained that the Veteran did not meet the first requirement for a diagnosis of PTSD, which was exposure to a traumatic event, and he did not meet the second major requirement of reexperiencing a traumatic event in a recurrent and intrusive way. As such, the examiner concluded that the Veteran did not satisfy the diagnostic, DSM-IV criteria for PTSD. The examiner added that the Veteran did appear to be somewhat depressed, but the examiner stated that there was no clear way to relate such a diagnosis to the Veteran's military service. The examiner also reviewed the private opinion from February 2005, noting that the opinion had diagnosed depressive disorder which he noted was consistent with the findings at the VA examination. The examiner also noted that while 2005 examination had suggested that PTSD should be ruled out, it did not actually diagnose PTSD, and the VA examination confirmed that a diagnosis of PTSD was not warranted. Another VA examination was provided in September 2009. The examiner reviewed the claims file including the prior private and VA examination reports, and a letter from the Veteran's brother which asserted that the Veteran's personality had changed since he returned from service (although it appears that the brothers had little contact from the time the Veteran enlisted in service until a number of years later). The Veteran reported thinking about his experience off the coast of Vietnam several times per month. He described the evacuation and his difficulty fitting in with the Seabee unit he was transferred into thereafter. Following the examination, the examiner diagnosed the Veteran with moderate depressive disorder. He then explained that a diagnosis of PTSD required an event that the individual experienced, witnessed, or was confronted with that involved actual or threatened death or serious injury or a threat to the physical integrity of himself or others. The examiner stated that the Veteran's report of his experience during the evacuation did not reach this requisite level of perceived threat. The Veteran indicated that the situation was disorganized and that he did not know what was going on, but the report was not accompanied by any indication of discomfort or spontaneous reports of anxiety or fear at the time. Rather the Veteran's report of the incident suggests that he was carrying out his normal duties. The examiner explained that the second criterion for PTSD is re-experiencing the trauma. The Veteran asserted that he would have nightmares if he laid flat on his back and the dreams involved Asian people. However, the Veteran did not report specific nightmares or dream content which related to the event in question. He also denied re-experiencing the event in the form of either flashbacks or experiencing intense distress when exposed to external cures related to the event. As such, the examiner concluded that the Veteran did not meet the second criteriaon. The examiner stated that the third criterion related to the avoidance of stimuli associated with the trauma and numbing of responsiveness. In this regard, the Veteran stated that he was a loner and that he avoided people, but the examiner noted that he did not report avoiding activities or stimuli that might arouse recollections of his experiences of the coast of Vietnam. As such, the examiner concluded that the Veteran at most met this criterion to a minor degree. The examiner also found that the Veteran met the fourth criterion to at most a mild degree. Following the examination, the examiner concluded that the Veteran's report of symptomatology did not support a diagnosis of PTSD. The symptoms did reflect a depressive disorder of moderate severity, but the examiner found that while the date of onset of the depression was unclear, there was no indication of any association to his military service. While the VA examinationer have unanimously concluded that the Veteran has not met the DSM-IV criteria for PTSD, several treatment records refer to PTSD. For example, in January 2012, the Veteran was seen by the VA mental health clinic. He approached a doctor to inquire about services for PTSD treatment, and reported a number of stressors, including his personal health, the health of family members, and being the sole caregiver for two older children, as well as symptoms of depression and PTSD. The Veteran agreed to a referral to the PTS Recovery Program and to start the Depression Management Class. The doctor diagnosed the Veteran with PTSD and depression, but noted that both were by symptom report alone and as recorded on active problem list. Several other VA treatment records list PTSD on the Veteran's problem list. Additionally, testing in January 2012 suggested that a PTSD diagnosis was warranted and that the Veteran met the B, C, and D criteria for PTSD pursuant to the DSM-IV. However, it was cautioned that such suggestion was based on a self report assessment and was not sufficient to use alone for diagnostic purposes. Nevertheless, because of the treatment records showing the possibility of PTSD, the Board remanded the Veteran's claim again in September 2012 to obtain another VA examination. The Veteran underwent the VA examination in October 2012. The examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The Veteran was diagnosed with an adjustment disorder with anxious mood related to his ongoing life stressors including his parents' health, financial stress, being unemployable, and his own health problems. The Veteran suggested that these symptoms had begun in 2007 or 2008. The examiner found the reported stressor of the evacuation was not adequate to support DSM-IV criterion A as the circumstances did not involve actual or threatened death or serious injury to the Veteran or others. The examiner also found that Criterion B was not met as the Veteran did not persistently reexperience a traumatic event. She acknowledged that the Veteran did think about the evacuation, but he did not reexperience it as contemplated by the DSM-IV. The examiner indicated that Criterion C was not met as the Veteran did not experience persistence avoidance of stimuli associated with the trauma, or numbing of general responsiveness. The examiner acknowledged that the Veteran did experience some diminished interest or participation and he had some detachment from others, but she found these symptoms were better explained by the Veteran's depression. The examiner found Criterion D was met as the Veteran reported difficulty falling or staying asleep, but she also felt this was explained by his depression. As such, the examiner concluded that the Veteran did not meet the Criteria for PTSD. The examiner went on to opine that it was less likely than not that the Veteran's acquired adjustment disorder and depression was related to the Veteran's military service for a number of reasons. She noted that the Veteran was evaluated psychiatrically in service but was not diagnosed with an adjustment disorder, she noted that the Veteran did not receive any psychiatric treatment for a number of years after service, and she noted that the Veteran referenced a number of life stressors which better accounted for his current unhappiness than did his military service. As an initial point, while the Veteran is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as diagnosing a psychiatric disability such as PTSD. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to establish that he has PTSD or to relate a diagnosis to his military service. Instead, competent evidence is required to determine whether the Veteran does in fact meet the DSM-IV criteria for PTSD. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). As described, there is some indication in the Veteran's claims file that he has PTSD (the Board has not ignored any indication in the record that the Veteran has PTSD); and it is certainly understandable why the Veteran would believe that he has PTSD, as several doctors have stated that he has PTSD and several PTSD screens have been positive. However, having reviewed the evidence in its totality, the Board finds that there is no question that the medical consensus is that the Veteran does not actually meet the DSM-IV criteria for PTSD. As described, a private psychologist did diagnose the Veteran with PTSD in March 2006. However, the psychologist did not describe in any detail how the Veteran satisfied any of the DSM-IV criteria for PTSD. Conversely, since that time, three VA examiners have evaluated the Veteran and each has concluded that the Veteran does not actually have PTSD. These examination reports contain exacting detail as to why the examiners reached the conclusions they did. It also appears that the private psychologist in 2006 based his diagnosis upon a number of reported symptoms, which have subsequently been accounted for by a depressive disorder. Moreover, while a number of the reported symptoms, upon which the private psychologist seems to have relied in making his diagnosis, appear to meet the DSM-IV criteria, upon closer inspection they fail to actually do so. For example, the Veteran continually cites to his witnessing the evacuation as his reported stressor. However, the VA examiners have concluded that this event did not actually satisfy Criterion A. Likewise, the Veteran may think about the event, but he does not appear to reexperience it in the manner contemplated by the DSM-IV. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). Here, not only have three separate VA examinations all concluded that they Veteran did not have PTSD, but each examination was more thorough than the single private evaluation in 2006 which concluded that the Veteran had PTSD. As such, the Board will assign greater probative value to the VA opinions which have concluded that the Veteran does not have PTSD. Likewise, while several VA treatment records list PTSD, such diagnoses were not shown to be based on clinical examination and are not supported by any explanation of how the Veteran's symptoms actually met the DSM-IV criteria. As such, these treatment records are found to be significantly less probative than are the VA examination reports, and are therefore afforded little weight. As noted, the VA examiners provided a full rationales for their conclusion, and their opinions are therefore found to be highly probative and entitled to great weight. While the Board has not found the private doctor's opinion to be incredible, a review of totality of the evidence unquestionably leads to the conclusion that a diagnosis of PTSD is simply not warranted in the Veteran's case. The Board is cognizant that in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Here, however, while a provisional diagnosis of PTSD may have been rendered, the Board believes that the weight of medical evidence overwhelmingly suggests that PTSD was not in fact an appropriate diagnosis for the Veteran's psychiatric symptomatology at any time during the course of his appeal. As such, the Board concludes that any provisional diagnoses lack the medical foundation to establish the presence of PTSD at any time during the course of the Veteran's appeal. Simply stated, the best evidence in this case is that the Veteran does not have PTSD, at any time, notwithstanding any evidence to the contrary. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran's claim of entitlement to service connection for PTSD is denied. The Board will now turn to the issue of whether service connection for an acquired psychiatric disability, other than PTSD, is warranted. For the following reasons, the Board concludes that it is not. Service treatment records fail to show any psychiatric complaints while the Veteran was in service. It is true that the Veteran was recommended for separation based on a finding that he had an inadequate personality. However, no Axis I psychiatric disability appears to have been diagnosed and the Veteran was found to be psychiatrically normal on both his enlistment physical and on his separation physical in 1976. Following service, there is no indication that the Veteran received any psychiatric treatment for a number of years. The Veteran's brother did write a letter suggesting that the Veteran's personality had changed after service, but it appears from a plain reading of the letter that they had little contact during the Veteran's time in service or in the years that followed. Therefore, even accepting that the Veteran's personality did change in the years following service, it is not diagnostic of the onset of a psychiatric disorder in service. Moreover, the Veteran's brother has not been shown to have the medical qualification or training to render a psychiatric diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As it stands, the record shows that the Veteran was found to be psychiatrically normal on examination at both at separation and within a year of separation, and there is no clinical indication that he began experiencing any psychiatric symptoms for several decades following service. While this passage of time without any psychiatric treatment is not dispositive, it is certainly evidence which tends to weigh against a finding that the Veteran's current psychiatric disability began during his military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). As noted, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a psychiatric disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). It is also noted that he has not reported experiencing psychiatric symptoms consistently since service. Several medical opinions have addressed the Veteran's acquired psychiatric disability, but none of the opinions have actually found that such a disability either began during or was otherwise caused by the Veteran's military service. In May 2007, the VA examiner stated that the Veteran appeared to be somewhat depressed, but found that there was no clear way to relate such a diagnosis to his military service. At the September 2009 VA examination, the examiner found that the Veteran's symptoms did reflect a depressive disorder of moderate severity, but opined that, while the date of onset of the depression was unclear, there was no indication of any association to the Veteran's military service. Similarly, at the 2012 VA examination, the examiner opined that it was less likely than not that the Veteran's acquired adjustment disorder and depression was related to his military service for a number of reasons. She noted that the Veteran was evaluated psychiatrically in service but was not diagnosed with an adjustment disorder, she noted that the Veteran did not receive and psychiatric treatment for a number of years after service, and she noted that the Veteran referenced a number of life stressors which better accounted for his current unhappiness than did his military service. Thus, no medical opinion of record has been advanced even suggesting that the Veteran had an acquired psychiatric disability, other than PTSD, that either began during or was otherwise caused by his military service. As such, the criteria for service connection have not been met, and the Veteran's claim for service connection for an acquired psychiatric disability, to include PTSD, is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private examination reports have been obtained, as have VA treatment records and service treatment records. The Veteran has not alleged receiving any private treatment beyond the two evaluations which are of record. Additionally, the Veteran was scheduled to testify at a hearing before the Board, but he failed to appear and did not provide good cause for his absence. As such, his hearing request is considered to have been withdrawn. The Veteran was also provided with multiple VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations have been thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs