Citation Nr: 1310982 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 08-33 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and I.G. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before a Decision Review Officer at a hearing held at the RO in August 2009. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. The Veteran served in Vietnam. 2. The Veteran is not shown to have had combat service, and his reported in-service stressors are not related to fear of hostile military or terrorist activity. 3. A current diagnosis of PTSD is not based upon a credible, verified stressor. 4. A current diagnosis of major depressive disorder has not been related to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD and major depressive disorder, have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter sent in July 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in February 2012, and the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. The examiner conducted a clinical evaluation, reviewed the medical history, and described the disorder in sufficient detail so that the Board's evaluation is an informed determination. For these reasons, the Board finds that the VA opinion is adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." DSM-IV at 427-28. During the pendency of this claim, effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 38 C.F.R. § 3.304(f)(3)(2012). The amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." The Board has considered the Veteran's claim under the amended version of 38 C.F.R. § 3.304(f) as it was appealed to the Board prior to July 13, 2010, but not decided by the Board as of July 13, 2010. Under the former version of 38 C.F.R. § 3.304(f), VA was required to undertake extensive development to determine whether a non-combat Veteran actually experienced the claimed in-service stressor. Lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The Veteran's reported stressors do not involve "hostile military or terrorist activity" under the changes to 38 C.F.R. § 3.304(f)(3). Thus, the analysis of this claim will proceed under the former version of 38 C.F.R. § 3.304(f) as it relates to the current diagnosis of PTSD. According to the Veteran's DD Form 214, his military occupational specialty (MOS) was engineman. The DD Form 214 does not document any decorations, medals or ribbons indicative of combat. Service records reflect that he served aboard the USS Jason AR-8 from October 1968 to October 1970. Service treatment records are negative for a psychiatric disorder, to include PTSD or major depressive disorder. The records reveal that in June 1970, the Veteran sustained lacerations to his arm after he struck it on a fan blade while trying to leave the vicinity of an engine that appeared as if it would explode. No psychiatric disorder was noted during the July 1968 induction examination, throughout service, or during a July 1972 separation examination. In January 2008 a licensed social worker at the Vet Center diagnosed the Veteran with PTSD, chronic, combat-related and major depressive disorder. The Vet Center records reflect that these diagnoses were based on two reported in-service stressors: 1) the Veteran having suffered cuts to his arm during an engine explosion, and 2) having witnessed two Vietnamese men being shot by the enemy. The Veteran was referred for further psychiatric evaluation by the Vet Center. In January 2008, Dr. Cave, a private psychologist, diagnosed the Veteran with PTSD, chronic, combat-related; and major depressive disorder, chronic, combat-related. Dr. Cave specifically indicated that the Veteran's PTSD was related to a traumatic event in service that had occurred while he and his chief were driving a boat with an engine they had just repaired. Dr. Cave noted that the boat exploded and pieces of the engine cut the chief in half, causing his death. Dr. Cave went on the state that the Veteran also sustained injury but there was no documentation to that effect. At an RO hearing held in August 2009, the Veteran and his witness described stressful events that are alleged to have occurred in service. His witness also provided testimony as to the Veteran's symptoms that she had personally observed throughout the years. The Veteran was afforded a VA examination in February 2012. Following review of the claims file, a clinical interview, and clinical testing, the examiner determined that the Veteran did not have a diagnosed psychiatric disorder. With respect to the diagnoses of PTSD provided by the private clinicians, the examiner determined that the Veteran did not meet the criteria for a PTSD diagnosis. The examiner explained that neither of the Veteran's reported stressors are related to fear of hostile military or terrorist activity, and furthermore they are not sufficient to support a diagnosis of PTSD (i.e., criterion A was not met). Turning to the merits of the Veteran's claim, a psychiatric disorder is not shown to have manifested during active service. The service treatment records reflect no findings of a psychiatric condition. It is acknowledged that the Veteran is currently diagnosed with PTSD and major depressive disorder. However, there is no probative evidence establishing a causal nexus between these diagnoses and his military service. With respect to PTSD, service connection requires credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In this case, the Veteran reports that his only in-service stressors were having witnessed a person killed by two Vietnamese soldiers; and sustaining injury to his arm from a boat engine explosion. Inasmuch as the Veteran is not shown to have participated in combat (e.g. a combat Veteran), and these stressors are not associated with combat, they require corroboration. The first stressor has not been corroborated, thus it cannot be used to establish a diagnosis of PTSD. Without such corroboration of this in-service stressor, any diagnosis of PTSD based on this account has no probative value. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). The second and final stressor is partially corroborated by the service treatment records. These records reflect that the Veteran injured himself (i.e., he sustained lacerations to his arm which required stitches) while running away from an engine that seemed as if it would explode. There is no indication that the engine actually exploded. To the extent that the PTSD diagnosis provided by the social worker was based, in part, on this incident, it is of limited probative value as the factual premise is inaccurate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal v. Brown, 5 Vet. App. 458 (1993) that a medical opinion based on an inaccurate factual premise is of no probative value). An engine did not explode. Further, even if the Board were to accept this as a corroborated stressor, the social worker's findings are outweighed by the more probative medical findings and opinion of the VA psychologist. The VA psychologist's finding that no psychiatric disorder currently exists is based on his expertise and clinical experience in the field of psychiatry, his advanced level of training, and review of the claims file. There is no evidence that the social worker has equivalent expertise and clinical training in the field of psychiatry and the social worker did not review the claims file. The VA psychologist's opinion was also supported with a detailed clinical rationale, whereas the social worker's findings were not. For these reasons, the VA opinion is far more probative and persuasive. Dr. Cave specifically indicated that the Veteran's PTSD was related to an engine explosion that cut the Veteran's chief in half, causing his death. This description of the event is entirely inaccurate and unsupported by the record, to include the Veteran's description of that incident. Accordingly, her diagnosis and opinion is of no probative value. See Black v. Brown, 5 Vet. App. 177, 180 (1993) (as a medical opinion can be no better than the facts alleged by a veteran, an opinion based on an inaccurate factual premise has no probative value). The Veteran has also been diagnosed with major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disorder also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). However, neither private provider has specifically linked this diagnosis to the Veteran's reported stressors, or to any other aspect of his military service. The Board is cognizant of the lay testimony of record, to include the written and oral testimony from the Veteran's witness; however, these statements are of very little probative value. While the Veteran and his witness are both competent to attest to the Veteran's symptoms they have observed over the years, and although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case (i.e., whether the Veteran has a current psychiatric disorder and whether it is related to service), identifying both the nature and etiology of PTSD and major depressive disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The record otherwise does not contain competent and credible evidence, lay or medical, that links any current acquired psychiatric disorder to an event in service. The preponderance of the evidence is against the claim of service connection, there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for a psychiatric disorder, to include PTSD and major depressive disorder, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs