Citation Nr: 1310015 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-13 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to March 1991, to include service in the Southwest Asia theater of operations. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision rendered by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). As noted in the October 2011 Board remand, the Veteran's claim for service connection for PTSD was expanded to incorporate all currently-diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). FINDINGS OF FACT 1. The record does not contain a diagnosis of PTSD which meets the criteria of the DSM-IV as required by VA regulations. 2. The most probative evidence of record indicates that currently-diagnosed psychiatric disorders did not occur during, or are otherwise related to, the Veteran's period of active service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in July 2006 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2007. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records have been obtained. Pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, as directed by the October 2011 Board remand, a VA examination was provided in November 2011 so as to ascertain whether any current psychiatric disorder was etiologically-related to an inservice incident, or otherwise related to her period of active duty. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate, as the examiner included a thorough review of the file, as well as a physical examination, and provided findings relevant to the issue at hand following the examination. The Veteran's complaints and lay history were also considered and discussed, to include her accounts of in-service stressors, as was prior medical evidence of record. Rationale was provided with the opinion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As to the Veteran's representative's contentions that the VA examination was inadequate, those concerns are addressed in their entirety at the end of the following section. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service connection In this case, the Veteran has claimed entitlement to service connection for posttraumatic stress disorder (PTSD), recharacterized by the Board in October 2011 as entitlement to service connection for an acquired psychiatric disorder. The record contains diagnoses of several disorders, to include depression, manic depressive disorder, situational disorder, and PTSD. Specifically, the Veteran has indicated that in-service stressors, such as hearing about a SCUD missile attack that killed soldiers in another unit, as well as the passing of her mother during her tour of duty, resulted in her current psychiatric symptomatology. To that end, the Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection for PTSD 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 in-service stressor. The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Effective July 13, 2010, the regulations governing PTSD claims eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to his/her 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. 75 Fed. Reg. 39843-52 (July 13, 2010); 38 C.F.R. § 3.304(f)(3) (2012). At the outset, and as noted above, the evidence of record does contain diagnoses of several psychiatric disorders. Thus, element (1) of Hickson has been satisfied for this issue, as current diagnoses are of record. The Veteran links her current diagnoses of depression to active military service, as well as that of PTSD. However, following a review of the Veteran's service treatment records, there is no mention of complaints, treatment, or diagnosis for any mental disorder. Post-service, a VA Mental Health intake assessment in May 2006 reported a "history of depression since 1991, after SCUD missile attack." A VA Mental Health intake note in May 2006 noted that the Veteran felt sad, hopeless, was not sleeping at night, and had recurrent nightmares of the war and of a recent car accident. The assessment was PTSD and manic depressive disorder, though it is unclear as to whether that diagnosis was ultimately made in accordance with the DSM-IV criteria. A VA PTSD screen in September 2006, however, was negative for evidence of PTSD. At such time, she was asked four questions, and responded to all in the negative. Specifically, she denied ever having an experience that was as frightening, horrible, or upsetting as to cause nightmares. She also denied ever trying hard not to think about it or avoid situations that reminded her of it. She denied being constantly on guard, watchful, or easily startled. Finally, she denied ever feeling numb or detached from others, activities, or her surroundings. Following the denial of her claim for PTSD in March 2007, the Veteran filed a notice of disagreement in which she stated that she disagreed with the denial "of service connection for an acquired psychiatric disorder to include PTSD and depressive disorder." During a PTSD screening in July 2008, when asked the same four questions, she responded in the affirmative and the PTSD screen was deemed positive. As such, there is conflicting evidence as to whether the Veteran has a diagnosis of PTSD which meets the criteria as listed in the DSM-IV. For instance, the Veteran underwent a VA psychiatry consultation in August and December 2008. Each time, she described symptoms of PTSD. The VA examiner provided an Axis I diagnosis of: "Posttraumatic stress disorder, does not meet the full DSM IV criteria." The VA examiner did not specify which criteria were absent. In any case, in October 2011, the Board found it contradictory for the VA examiner to diagnose PTSD, while at the same time stating that not all the criteria had been met. Given the apparent disparity in the diagnoses of record, the Board found in October 2011 that a VA opinion was required. In addition to assisting the Board in obtaining evidence as to the proper diagnosis, the Board determined that a VA examination would assist the Board in determining whether any of her claimed PTSD stressors were adequate to support a diagnosis of PTSD. Importantly, recent regulatory amendments changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. While these recent amendments reduce the evidentiary standard necessary to verify a service stressor alleged to result in PTSD, they require that a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. As to the Veteran's various diagnoses for depression within the record, the Board also requested that the VA examiner determine whether it was at least as likely as not that depression was related to her period of active duty service. In accordance with the Board remand, a VA examination was afforded in November 2011. At that time, the Veteran was "most evasive" when asked about her combat experience, instead referring to other stressful events during service, to include her mother's passing, as well as hearing about other soldiers who were killed in a SCUD missile attack. She indicated that she was always depressed, and that she thought about the soldiers who were killed a great deal. She further indicated that she suffered from financial concerns and health problems, and that these issues also affected her mood. She indicated that she took medication to help her sleep which was provided by VA, however, the examiner was unable to find evidence to support this. The examiner noted her diagnoses of depression in several forms, though it was noted that she did not meet the criteria for a PTSD diagnosis in August 2008, December 2008, or May 2009 (to include a negative PTSD screen in September 2006, January 2007, and January 2008). Following an interview, the Veteran was diagnosed with a depressive disorder, not otherwise specified (NOS). The examiner found that she did not endorse symptoms meeting the criteria for PTSD, and that other negative PTSD screens were of record (which instead provided diagnoses of depression). The examiner further determined that her stressor statement (SCUD missile attack which killed other soldiers) did not meet the clinical criteria of a traumatic event. Instead, the Veteran simply had knowledge of a traumatic event that happened to others. With regard to depression, he indicated that her depression was originally diagnosed decades after service, citing VA reports of record. In fact, the examiner stated that she was seen at the Central Alabama Veteran's Health Care Center beginning in 1999 on several occasions, with no mental health diagnosis until 2006. It was further noted that the Veteran was never on a regimen of psychiatric medication to treat her depression, and that the diagnosis of "situational" depression was very consistent with her post-service record (the Veteran has been homeless in the past, and has also tied her depression to financial difficulties). As such, the VA examiner's opinion was wholly negative, finding that she does not meet the DSM-IV criteria for PTSD, that her reported stressors were not valid stressors on which to base a PTSD diagnosis even if she did carry a current diagnosis; and that her depression, not diagnosed until many years after separation, was most likely tied to her post-service living circumstances, and not related to her military service. As to the lay evidence of record, to include the Veteran's statements in support of her claim and her assertion in 2006 that she had been depressed since 1991, the Veteran is competent to report in-service psychiatric symptomatology, such as feeling depressed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that her psychiatric disorders are linked to stressful situations during her period of active duty. Again, she is deemed competent to report psychiatric symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, as a layperson without medical knowledge, training, and/or experience, she is not found to be competent to provide an opinion as to whether a complex psychiatric diagnosis is linked to one or more traumatic events. Opinions of that nature require a level of medical expertise that the Veteran does not possess. Indeed, as discussed above, medical experts have reviewed the claims file, examined the Veteran, and considered her personal statements, and ultimately determined that the Veteran's claimed disorder is not related to her military service. Laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) she is reporting a contemporaneous medical diagnosis, or (3) her description of symptoms at the time supports a later diagnosis by a medical professional. Id. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Here, there is no persuasive lay or medical evidence to support a link between her currently-diagnosed psychiatric disorders and her period of active duty. Further, the Board finds that the Veteran's statements are inconsistent with the record, and therefore not credible. First, and as pointed out by the November 2011 VA examiner, the Veteran was treated by VA professionals for many years before a psychiatric diagnosis was rendered. As such, her reported history of depression since 1991 is called into doubt. Second, the Board notes that the unit which suffered the SCUD missile strike in question, which destroyed the barracks housing members of the 14th Quartermaster Detachment, was not the Veteran's unit. Instead, she was a member of 1241st Adjutant General Company. As such, not only was the Veteran not present during the SCUD attack, but she was also in a different unit. Third, the Board points out that the Veteran's PTSD screening, a series of four questions designed to gauge whether a diagnosis of PTSD may be appropriate, abruptly changed in July 2008 following her initial denial of service connection in January 2007. As such, while the Board has reviewed the Veteran's medical history of record, to include VA and private treatment, the record lacks a probative medical opinion linking any chronic psychiatric disorder to her period of active service. Further, lay evidence submitted by the Veteran has not been found credible by the Board, and is therefore not probative in this matter. In sum, the most probative evidence of record does not establish that the Veteran's currently-diagnosed psychiatric disorders had their onset in service, or are otherwise related to stressful events during service. Instead, the most probative evidence of record indicates that it is less likely than not that any psychiatric disorder is related to an in-service incident, or otherwise related to her period of active duty. While the diagnosis of PTSD may have been in question, the only comprehensive examination, which is now of record, found that she does not carry that diagnosis. To the extent the record contains indications of PTSD symptoms, there remains no medical opinion of record to demonstrate that her claimed stressors are able to support that diagnosis in accordance with DSM-IV criteria. As to the SCUD attack, even if that was determined to originate from fear of hostile or terrorist activity, a diagnosis of PTSD has not been linked to that stressor by any medical professional of record. As to depression, the Board has fully considered the lay statements of record, and does not doubt that the Veteran suffered from depression. However, and as explained above, the Veteran's statements lack credibility, and the most probative evidence of record does not indicate that any current psychiatric condition is related to a her period of military service. As to statements by the representative in support of her claim, he argued that the opinion of the VA examiner was inadequate, as the fear of hostile or terrorist activity was not discussed in detail. However, and as explained in detail above, the examiner determined that the Veteran did not carry a PTSD diagnosis, and therefore any further discussion as to her stressor would not have been relevant. The representative further argued that a clear etiological opinion was not provided. However, the examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, that her stressor was inadequate to support that diagnosis even if those criteria were met, and that depression had its onset years after her separation from service. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, the preponderance is against the Veteran's claim, and therefore her claims for service connection for an acquired psychiatric disorder must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs