Citation Nr: 1312264 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-03 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Navy from May 1943 through April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which in pertinent part denied service connection for PTSD. This matter was previously before the Board in November 2012, when the matter was recharacterized to encompass entitlement to service connection for any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue on appeal was remanded for further claims development, to include efforts to obtain additional VA treatment records. The action directed in the remand has been performed. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. FINDING OF FACT The Veteran is not diagnosed with PTSD or any other acquired psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. VA's notice 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 v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a pre-rating July 2008 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for PTSD. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's March 2009 rating decision. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 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). The Veteran was also afforded a VA psychiatric examination in June 2012. For the reasons discussed in the Board's analysis below, this examination, along with the other evidence of record, are fully adequate for the purposes of determining the nature and etiology of the Veteran's claimed PTSD and/or other psychiatric disorders. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Analysis In his June 2008 claim and subsequent claims submissions, the Veteran asserts that he is entitled to service connection for PTSD. In support of his claim, he has reported that he was stationed in Norfolk, Virginia to attend radio school in September 1943 when a bomb exploded in a nearby hangar, killing 30 people. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Specifically for PTSD, service connection requires medical evidence diagnosing the condition 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In a formal memorandum contained in the claims file, the RO conceded the occurrence of the Veteran's stressor; namely, that the Veteran was stationed at Norfolk, Virginia and attending radio classes in September 1943, when a bomb exploded in a hangar located at Norfolk Naval Air Station. As VA has conceded the occurrence of the Veteran's in-service stressor, analysis of the Veteran's claim turns to the questions of whether the Veteran meets the diagnostic criteria for PTSD diagnosis, and if so, whether the Veteran's PTSD symptoms are linked to his in-service stressor. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria set forth in the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). The evidence in this case does not show that the Veteran has received a PTSD diagnosis. Post-service VA treatment records show that the Veteran participated in a January 2005 PTSD screening that was positive for possible PTSD. He was referred for further psychiatric evaluation in May 2005. During the evaluation, he reported the in-service stressor noted above, as well as other psychosocial stressors which included the service-related death of his brother and the more recent coma and death of his daughter. In describing his in-service stressor, the Veteran elaborated that he was in class when the bomb exploded in the hangar approximately a quarter mile from where the Veteran was located. He stated that he did not witness any of the damage that ensued from the explosion and that he did not actually witness any deaths. Regarding his psychiatric symptoms, the Veteran denied having any problems adjusting to social life after being separated from service. He stated that he worked for a car dealership from 1946 through 1989 and that he did not have any problems holding his job. He denied having any current PTSD-related symptoms such as nightmares, flashbacks, inability to tolerate crowds, hyperarousal, hypervigilence, sleep problems, depressive symptoms, or hallucinations. He denied having any impairment socially, occupationally, or interpersonally. Although he endorsed some intrusive thoughts, he reported that they began occurring after the death of his daughter two years ago and that his intrusive thoughts were of his daughter. During the mental status examination, the Veteran was dressed casually and cooperative during the interview. His speech was normal in rate and volume, and was non-pressured and coherent. No psychotic symptoms were observed and his thought content was logical and goal-directed. Demonstrated mood was euthymic with congruent affect. His insight and judgment were also intact. The Veteran denied having any suicidal or homicidal ideation. Overall, the evaluating psychiatrist determined that the Veteran did not meet the criteria for a PTSD diagnosis, and notably, a multi-axis diagnosis did not include an Axis I diagnosis of any psychiatric disorders. In June 2012, the Veteran was afforded a VA psychiatric examination. At that time, he reported again that he did not witness the September 1943 explosion, but stated that he did clearly hear it. Concerning his current symptoms, he reported frequent thoughts about the losses from the explosion. However, he denied having other PTSD-related symptoms such as sleep disturbances, nightmares, socially avoidant behavior, avoidance of war-related media coverage, violence, or suicidal or homicidal ideation. The examiner noted in his review of the claims file that the Veteran did not have any history of psychotic, manic, hypomanic, or obsessive compulsive behavior. Similarly, the examiner noted that the Veteran did not have any prior history of psychiatric treatment (other than the aforementioned May 2005 evaluation) or psychotrophic medication. The examiner opined that the Veteran's reported stressors of the September 1943 explosion and the service-related death of his brother were both adequate to support a PTSD diagnosis. Nonetheless, after clinical psychiatric examination of the Veteran, the examiner concluded that the Veteran's symptomatology did not meet all of the criteria for a PTSD diagnosis under the DSM-IV. In that regard, the examiner concluded that the Veteran did not demonstrate persistent avoidance of stimuli associated with his reported trauma (Criteria C under the DSM-IV), or, persistent symptoms of increased arousal that was not present before the reported traumatic events (Criteria D under the DSM-IV). Indeed, the examiner's analysis and conclusions appear to be consistent with the symptomatology reported by the Veteran during his May 2005 evaluation and during his VA examination. Based upon the findings from the examination, the examiner concluded that the Veteran did not have PTSD or any other mental health disorder. Subsequent VA treatment records dated from November 2003 through February 2013 do not indicate any further treatment for any subjective psychiatric complaints, much less, any objective psychiatric findings. Indeed, a repeated PTSD screening performed in July 2012 was normal. The Veteran also repeatedly denied depressive symptoms; numerous screenings for depression are consistently noted to be negative. In view of the foregoing, the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD, must be denied. There is simply no evidence of a current disability. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs