Citation Nr: 1309979	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  09-06 362	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disorder other than PTSD.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1970 to February 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In November 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO.  A transcript of that hearing is associated with the claims file.

In March 2011, the Board remanded the case for additional development.  It now returns for further appellate review.  

The Board notes that at certain points during the appeal the issue has been characterized as whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD.  However, as will be discussed below, the Board finds that 38 C.F.R. § 3.156(b) applies in this case as the RO received relevant evidence within the one year appeal period from the May 2006 prior denial.  Thus, the claim is now being decided on the merits.  See Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). 

Finally, the Board observes that the RO adjudicated the issue as entitlement to service connection for PTSD.  However, medical evidence of record reveals current diagnoses of various acquired psychiatric disorders, to include depressive disorder, depression, and dysthymia.  The United States Court of Appeals for Veterans Claims (Court) has held that 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.  Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  Therefore, the Board has recharacterized the claim on appeal as listed on the cover page.

For the reasons explained below, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is REMANDED to the RO via the Appeals Management Center (AMC).  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  The evidence submitted within one year from notice of the May 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD. 

2.  The preponderance of the evidence is against a finding that the Veteran suffers from PTSD.


CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 

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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In the instant case, appropriate notice was provided in a May 2007, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter also advised him of the information and evidence necessary to establish a disability rating and an effective date and the type of evidence that impacts such determinations.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA treatment records, and a VA examination report.  Further, pursuant to the March 2011 remand directive, the RO obtained treatment records from the Orlando VA Medical Center (VAMC) and outpatient clinic (OPC) dated September 2009 to February 2011.  The Veteran has not identified any additional outstanding records that have not been requested or obtained.  



The Veteran was also afforded a VA examination in April 2009 with respect 
to the issue decided herein.  The Board finds that such VA examination and accompanying opinion are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record; and physical examination.  The opinion considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided adequate rationale.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met.  

The Board notes that, pursuant to the March 2011 remand directives, the RO provided amended VCAA notice via a letter dated in March 2011, and additional VA treatment records were obtained.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked.  Here, The Veteran's representative asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for service connection.  Moreover, the Veteran volunteered his treatment history and symptoms since service.  The hearing discussion revealed that VA treatment records were outstanding, and the VLJ requested the identified records on remand.  Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim for service connection.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the VLJ hearing.  The hearing focused on the elements necessary to 

substantiate the claim.  As such, the Board finds that there is no prejudice to the Veteran in deciding this case.  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument and presenting for a VA examination.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 
 

II.  Analysis

As an initial matter, the Veteran filed a claim for service connection in February 2006.  Service connection for PTSD was denied in a May 2006 rating decision as there was no evidence of a diagnosis of the disorder or evidence of a stressor.  The Veteran was notified of this decision on June 8, 2006.  On June 8, 2007, the Veteran submitted a statement describing his stressor.  Pursuant to 38 C.F.R. § 3.156(b) new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  See Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  As the Veteran's stressor statement relates to an unestablished fact from 
the May 2006 denial, it is both new and material.  See 38 C.F.R. § 3.156(a).  Accordingly, a reconsideration of the claim on the merits, rather than a reopening of the claim, is necessary.  See Buie, 24 Vet. App. at 252-52; see also Jennings, 509 F.3d at 1368. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for PTSD requires a medical diagnosis of PTSD 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.  38 C.F.R. § 3.304(f).

The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy.  If the evidence establishes that a 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 such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2012).  Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred.  Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred.  Cohen v. Brown, 10 Vet. App. 128, 147 (1997).

However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans.  See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010).  Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity."  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran is claiming service connection for PTSD.  His service treatment records are negative for a diagnosis of PTSD.  His service personnel records show that he served in Vietnam for more than 2 years and 2 months.  He served with Construction Battalion Maintenance Unit 302.  He earned the Vietnam Service Medal, Republic of Vietnam Campaign Medal with device, and the National Defense Service Medal.  The Veteran reported that his unit came under enemy mortar attack while stationed at Cam Rahn Bay in 1970.  The RO indicated that such attack was verified, although there does not appear to be anything in the claims file indicating the origin of that information.  

Regardless, the claim for service connection for PTSD must be denied as there is no competent evidence indicating that the Veteran has been clinically diagnosed with PTSD. 

The evidence of record indicates the Veteran was first seen for psychiatric complaints in May 2005 at the Orlando OPC.  He denied a history of mental health problems, and reported recent onset of sadness and tearfulness.  He thought this might be related to his thyroid problems.  He was diagnosed with dysthymia, which the nurse practitioner noted was possibly related to thyroid.  In September 2005 the Veteran underwent a VA mental health consult.  The Veteran asked about having PTSD, but the VA psychiatrist stated that he presented no PTSD symptoms.  The psychiatrist assigned an Axis I diagnosis of depressive disorder.  The Veteran had negative PTSD screens in January 2006 and February 2007.  A May 2008 treatment record showed positive PTSD and depression screens but noted that the Veteran was already receiving the needed treatment.


The Veteran underwent a VA PTSD examination in April 2009.  The examiner reviewed the claims file, obtained historical information from the Veteran, and conducted a mental health examination.   The examiner acknowledged the Veteran's in-service stressor, but ultimately found that the Veteran's symptomatology did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria for PTSD.  The examiner diagnosed depression, not otherwise specified.  

Additional VA treatment records dating from November 2009 to February 2011, reveal a negative PTSD screen in December 2009.   A VA mental health consult in January 2010 again assessed depressive disorder.

In February 2010 the Veteran underwent an initial evaluation with a VA psychiatrist.  Based on a 45-50 minute interview and examination, the psychiatrist diagnosed depressive disorder.  The psychiatrist stated that the Veteran presented with mild symptoms of depression, but there were not enough symptoms to confirm PTSD.  

Although the Veteran testified at his November 2010 hearing that he had been diagnosed with PTSD by a VA clinician, as noted above VA treatment records do not reflect such a diagnosis.  

As a lay person, the Veteran is competent to testify with respect to facts and symptoms which are capable of lay observation.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  However, there is no indication that he has specialized training in diagnosing psychiatric disorders or determining their etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, determining whether mental health symptoms warrant a diagnosis of PTSD requires medical expertise to determine.  Thus, the Veteran's contention that he suffers from PTSD is not a competent medical opinion.  The Board accords significantly greater probative value to the medical evidence and opinions of record indicating that the Veteran does not suffer from PTSD, than to the Veteran's lay assertion to the contrary.  

Upon review of the record in its entirety, the Board finds that the competent and probative evidence indicates that the Veteran does not meet the diagnostic criteria for PTSD.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110; 1131.  In the absence of proof of present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).  

Here, based on a thorough interview, record review, and examination, the April 2009 VA examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD.  Such opinion is supported by the VA treatment records, which reveal no clinical diagnosis of PTSD.  Indeed, in February 2010 a VA psychiatrist indicated there were not enough symptoms to confirm PTSD.  Thus, the most probative evidence of record is against a finding that the Veteran suffers from PTSD.

Accordingly, the Board finds that the preponderance of the evidence is against the claim, and service connection for PTSD is denied.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. 


ORDER

Entitlement to service connection for PTSD is denied.

REMAND

As noted in the Introduction, the record reveals diagnoses of depressive disorder and depression.  In light of the Court's holding in Clemons, adjudication of the claim for service connection for an acquired psychiatric disorder other than PTSD is warranted.  Clemons, 23 Vet. App. at 5-6.  

The Veteran's service treatment records are negative for a psychiatric disorder. 

The medical evidence of record is conflicting as to the possible etiology of the Veteran's current depression.  The VA clinician who diagnosed the Veteran in May 2005 stated that his dysthymia was related to chronic medical problems, possibly hypothyroidism.  The April 2009 VA examiner opined that the Veteran was "experiencing long-term depression related to multiple life problems he has experienced and is facing today."  The examiner listed Axis IV factors for depression as foreclosure, financial problems, and unemployment.  The VA psychiatrist who saw the Veteran in February 2010 diagnosed depressive disorder with Axis IV factor of "memories of Vietnam."  However, the examiner did not review the claims file or address the various other factors reportedly causing or contributing to the Veteran's depression.  Additionally, although the February 2010 report noted the Veteran had identified strengths including good physical health, the Board notes the Veteran was being treated for prostate cancer during that time.  

In light of the above, the Board finds that a VA examination is necessary to determine the nature of the Veteran's current psychiatric disorder and to obtain an opinion as to whether such is related to service. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain VA mental health treatment records from the VA Medical Center in Orlando dating since March 2011.  If there are no mental health treatment records since that time, the claims file should be annotated to reflect such. 

2.  Schedule the Veteran for a VA mental health examination by a psychologist or psychiatrist to determine the current nature of his psychiatric disability and to obtain an opinion as to whether such is possibly related to service.  The claims folder and relevant electronic VA treatment records should be reviewed in conjunction with the examination. 

Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether the Veteran's diagnosed psychiatric disability is more likely, less likely, or at least as likely as not related to the Veteran's military service, to include an incident where his base came under mortar fire in 1970.  The examiner should explain his/her reasoning for the conclusion reached.

3.  After the development requested above has been completed to the extent possible, the RO/AMC should review the record.  If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board, if in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs