Citation Nr: 1311355 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-24 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from November 19, 1981 to December 1, 1981, March 17, 1982 to June 10, 1982, February 9, 1988 to February 11, 1988, and from February 12, 1988 to April 1, 1988. She also served from July 23, 1985 to August 13, 1985 in the Bright Star training exercise. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Court of Appeals for Veterans Claims (Court) held in Clemons v. Shinseki that claims for service connection for PTSD includes claims for service connection for 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, 23 Vet. App. 1 (2009). Accordingly, the Board has amended the claim as listed on the cover page. This claim was previously before the Board in June 2010, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. There is no competent and credible evidence that corroborates the occurrence of the Veteran's alleged in-service stressor. 2. The preponderance of the evidence is against a finding that Veteran has a current acquired psychiatric disability as a result of her military service. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 she 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 (in this case, the RO). Id.; see also 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. See Pelegrini, 18 Vet. App. at 121. In this case, in a May 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her 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 May 2007 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in July 2011. 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, service personnel records, research regarding her claimed in-service stressor, private treatment records, and Social Security Administration records. The RO did not afford the Veteran a VA examination on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. While the Veteran has been diagnosed with PTSD, the in-service stressor could not be verified, as discussed below in detail. Furthermore, there is no indication that other diagnosed acquired psychiatric disabilities are associated with service. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). Analysis 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, 1131; 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Establishing 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). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. This revision adds to the types of claims VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The amendment of 38 C.F.R. § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. If the veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. 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 Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. 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 service treatment records do not show any complaints, treatment or diagnoses related to PTSD or other acquired psychiatric disability. Following service, the Veteran suffered a head injury in March 1992 when she was hit by an automobile as a pedestrian. A May 1992 discharge summary from private neuropsychology services after approximately three weeks of inpatient treatment indicate that during treatment the Veteran had detailed delusions, severe memory problems, and confusion regarding current events. Over the course of the in-patient treatment the Veteran came to understand the head injury she had sustained in March 1992. The Veteran was diagnosed with organic delusional disorder. The Veteran had a private psychiatric evaluation in May 1992 at which she reporting not remembering the March 1992 accident. Her parents said she had short-term memory problems. It was noted that the Veteran had not had any psychiatric treatment prior to the accident. After the accident the Veteran was prescribed Haldol, and was subsequently switched to Mellaril, which she did not like because it made her feel agitated. The treating physician noted that the Veteran was argumentative and had little insight into her disability. The Veteran was diagnosed with organic personality disorder and agreed to take Mellaril at a lower dosage. Subsequent psychotherapy notes to February 1993 show continuing effects from the head injury. The Veteran underwent a private psychological evaluation in September 2001 at which she was diagnosed with dementia due to head trauma and rule out major depressive disorder (secondary to medical condition). Symptoms were frustration, irritability, and depression. The examiners felt that the Veteran appeared to have feelings of depression secondary to the closed head trauma. The Veteran underwent a private psychological evaluation in January 2007. She reported that in 1985 she was assigned to a joint training exercise in Egypt where she witnessed three Navy aircraft trying to land in formation. Two of the aircraft crashed and exploded on impact. She alleged she was amongst those responsible for transporting a surviving pilot to Germany, and he screamed the entire trip. The Veteran said that she had vivid dreams approximately once a week of the jets crashing and of the post-service accident in which she was hit by an automobile. She took sleep medication, without which she would only sleep for four hours a night. The Veteran said that the symptoms of depression from her automobile accident had lessened over the years. The examiner felt that if the Veteran served in Egypt as reported and it could be confirmed that the plane crash occurred, the Veteran's reports would be credible despite the limitations of her longterm memory as a result of the 1992 accident. The Veteran was diagnosed with PTSD. It was noted that she had symptoms related to the military accident and that her social isolation and restriction in areas of interest were consistent with witnessing a traumatic event with major injury and/or loss of life. Furthermore, the head injury and multiple visceral trauma did not, by themselves, account for the specificity of the Veteran's symptomatology. In a March 2008 statement the Veteran described the incident in which she witnessed the aircraft crash in Egypt. She said that she lost the memory of much of her military career after the 1992 accident, with the exception of the plane crash in Egypt and the flight to Germany with the injured pilot. She had dreams related to this, and her inability to get a good night's sleep adversely affected her motivation. Since the Veteran's in-service stressor incident of the airplane crash in Egypt did not involve combat or fear of hostile military or terrorist activity, there must be corroborating evidence that it occurred. See 38 C.F.R. § 3.304(f). The Veteran's service personnel records show that she participated in the Bright Star training exercise, as she reported. However, the research performed by the RO did not show an airplane crash during the 1985 Bright Star training exercise. The 1985 history of the 36th Aeromedical Evacuation Flight states that the Veteran participated in Bright Star but does not mention any aircraft accidents. Furthermore, the 1985 history of the 37th Aeromedical Evacuation Group discussed Bright Star without mention of any aircraft accidents. Likewise, histories of the 28th Bombardment Wing, 37th Tactical Fighter Wing, and 347th Tactical Fighter Wing indicate participation in Bright Star but do not mention aircraft accidents. The Fifteenth Air Force's Bright Star 85 Final Report and Military Airlift Command's Exercise Bright Star 85 After Action Report (U), and the United States Central Command's 1985 history also do not mention any aircraft accidents. Since the occurrence of the Veteran's reported stressor from military service has not been verified or corroborated, it cannot be the basis of a diagnosis of PTSD for the purposes of a claim of service connection. See id. Therefore, entitlement to service connection for PTSD must be denied. The competent and probative evidence does not suggest that the Veteran has an acquired psychiatric disability other than PTSD that is related to military service. The treatment records show that the Veteran has had diagnoses that have included organic delusional disorder, dementia due to head trauma, and rule out major depressive disorder (secondary to medical condition). The treating providers have related these to the Veteran's 1992 post-service accident. There are no competent opinions of record relating an acquired psychiatric disability other than PTSD to the Veteran's service. To the extent that the Veteran herself believes that she has an acquired psychiatric disability that is related to service, as a lay person she does not have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, psychiatric disorders can have many causes and medical expertise is required to determine the etiology of such. Thus, the Veteran's opinion as to the etiology of her disorder is not competent medical evidence. For the reasons set forth above, the Board concludes that the preponderance of the competent and probative evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs