Citation Nr: 1313399 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-19 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include a mood disorder with depression and anxiety. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, 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 Army from April 1969 to November 1969, to include a two month tour of duty in Vietnam prior to his hardship discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Newark, New Jersey, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for PTSD. In September 2012, the Board considered the claim and found that reopening was warranted. The underlying claim on the merits was then remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development and adjudication. As entitlement to the benefit sought was again denied by the AMC, the matter has been returned to the Board for further appellate consideration. The Board has recharacterized the issue on appeal. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects several psychiatric diagnoses in addition to the specifically claimed PTSD, as well as alternative theories of entitlement, and such must be considered. 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. In the September 2012 decision, the Board observed that the issues of entitlement to service connection for chronic kidney disease and a shoulder disability had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board did not have jurisdiction over them, and they were referred to the AOJ for appropriate action. There is no indication in the file that any action has yet been taken on those claims; they are therefore again referred to the RO. The Veteran has additionally raised a claim of entitlement to service connection for a pulmonary disability secondary to his service-connected disabilities; this matter is also referred to the RO. FINDINGS OF FACT 1. No valid diagnosis of PTSD has been made at any point during the appellate period. 2. No currently diagnosed acquired psychiatric disorder was first manifested in service or within the first post-service year; no such condition is shown to be directly related to any disease, injury, or event in military service. 3. Currently diagnosed mood disorder is caused or aggravated, at least in part, by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection of PTSD are not met. 38 U.S.C.A. §§ 1110, 114, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for service connection of a mood disorder with depression and anxiety are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). April 2007, November 2007, February 2008, and January 2013 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The April 2007 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim has been readjudicated following each supplemental notice letter, most recently in a February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical 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 and required opinions were obtained in February 2013; the Veteran has not argued, and the record does not reflect, that this examination and associated opinion is inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner reviewed the claims file and examined the Veteran; his report reflects clinical findings and conclusions to support his offered opinions, as well as appropriate rationales to explain those opinions. 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); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Evidence Service treatment records (STRs) reveal no complaints of or treatment for any psychiatric conditions or symptoms. There were no reports of worry, nervousness, or nightmares at the Veteran's April 1969 entry examination or on the November 1969 separation examination. Service personnel records (SPRs) verify that the Veteran did serve in Vietnam, from October 9, 1969 to November 17, 1969, a period of just over one month. No participation in any campaigns is noted. He did not receive any awards or decorations denoting combat participation, but has reported that while in Vietnam, he was exposed to gunfire, mortar attacks, and mines, and observed injuries to others as a result. He has stated that he was scared all the time in Vietnam, but because it was so long ago, he cannot recall details. The Board notes that the Veteran has exaggerated the length of his Vietnam service. He served about five weeks in-country, not the nine months he has reported. Post-service records reveal that the Veteran developed a serious drug addiction. In December 1971, he was hospitalized for heroin abuse. The Veteran has stated that he began using drugs in Vietnam. In March 1972, a VA examiner noted that the Veteran was restless and anxious, with past suicidal ideation. He admitted to auditory and visual hallucinations, and his memory and concentration were impaired. The examiner felt the Veteran showed a degree of emotional immaturity and instability that impaired judgment and insight. Heroin addiction and an associated psychosis were diagnosed. VA treatment records show that in April 1997, the Veteran sought psychiatric treatment, complaining of flashbacks, nightmares, and insomnia; he stated this was the first time he had sought treatment, but he had experienced symptoms for 20 years. The content of the nightmares and flashbacks was not specified. The Veteran stated he was depressed and irritable, with little motivation. The Veteran reported that he had attempted suicide in 1985, and was hospitalized, but details were unknown. He described his long history of drug abuse; he stated, however, that after being in a methadone program for 20 or more years, he had successfully undergone detox, and had been drug-free for six years. PTSD and rule out major depressive disorder were the diagnoses. Although the Veteran was referred for mental health treatment, there is no indication in records that he pursued such. In connection with the prior claim of service connection for PTSD, the Veteran was afforded a mental disorders examination in August 1999. The examiner did not have the claims file for review, and relied upon the Veteran's reported history. The Veteran reported that he had served in combat in Vietnam for nine months, with participation in numerous firefights. He witnessed casualties from gunfire, mortars, and rockets, and assisted with body recovery. He also saw civilians killed, including one girl who triggered a land mine. He became tearful in describing the events. Upon his discharge the Veteran "continued" his abuse of drugs and used until the early 1990's. Currently, the Veteran reported irritability; social isolation; depression; impaired sleep; and frequent flashbacks, intrusive thoughts, and nightmares related to combat. He reported being seen at the VA mental health clinic, and using medications. The examiner noted that the Veteran had experienced an allergic reaction to medication, and had developed serious health problems as a result, undergoing bilateral below the knee amputations, as well as amputations of multiple fingers. He was confined to a wheelchair. The doctor diagnosed PTSD and major depressive disorder secondary to PTSD. The Veteran made no mention of his prior psychiatric problems and treatment. In July 2000, a VA examiner evaluating the Veteran's amputations listed depression as a diagnosis, but included no specific findings and offered no opinion regarding the etiology of such. VA treatment records show that the Veteran was treated with counseling and medication immediately following his amputations in 1998, with good effect. He had been diagnosed with an adjustment disorder, but was soon released from treatment. VA records verify that the Veteran again began seeking psychiatric treatment at VA in February 1999. It was not individual psychotherapy, however, it was marriage counseling related to problems arising out of the Veteran's serious health issues. Subsequent VA treatment records show periodic depression and PTSD screens were conducted. Results were mixed, at times positive and at times negative; however, no referrals for treatment or diagnoses were made. One provider commented in April 2007 that although the PSTD screen was positive, after follow-up he did not feel PTSD was actually present. A VA mental disorders examination was conducted in February 2013; the examiner reviewed the claims file in conjunction with the examination. He opined that a diagnosis of PTSD was not warranted. Although the Veteran had served in Vietnam, the doctor did not feel that any of the reported stressors had occurred, and therefore a diagnosis of PTSD could not be made. He noted the lack of combat awards, and the wide variety of stressor reports from the Veteran over the course of the claims. Importantly, although questioned directly about stressors at the examination, the Veteran did not describe any service-related traumatic events. He focused instead on the impact of his health problems on his life. The examiner did state that the Veteran was properly diagnosed with a mild mood disorder with mixed depression and anxiety. He also opined that the Veteran's physical health problems, including those related to service, were at least "partly" responsible for his current psychiatric condition. 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. §§ 1110, 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. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD 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 claimed in-service stressor occurred. 38 U.S.C.A. § 115;38 C.F.R. § 3.304(f). Other acquired psychiatric disorders do not require verification of a stressor, though nexus evidence is still required. Some chronic diseases, including psychoses, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. The secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. There is no evidence of any acquired, service connectable psychiatric problem or symptom in service or for more than a year after separation. While it appears the Veteran's drug abuse may have begun in service, and the resulting psychosis may have arisen in the first post-service year, benefits are not available based on willful misconduct such as primary drug and alcohol abuse. 38 C.F.R. § 3.301. Further, the weight of the competent and credible evidence of record is against a finding of any direct link between service and any current disability. An examiner in 1999 diagnosed PTSD and related such to reported combat experiences, but that diagnosis and opinion are based upon inaccurate facts, and hence have no probative value. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). The Veteran did not participate in combat in Vietnam; although in a unit likely to have been so exposed, the Veteran has not shown that in the five weeks he was present, the unit was actually exposed while he was present. The Board notes that Cu Chi, where the Veteran states his stressors took place, was in a rear area and used as a supply base. There is no indication of activity, certainly not heavy activity as described by the Veteran, during his time there. He has stated that he cannot recall any details of any events, and the RO has determined that no further development can take place as a result. As the February 2013 examiner noted, the allegations of all the events that took place in his few weeks in Vietnam is a laundry list of possible combat stressor events, and the idea that he was exposed to all of them in such a short time period strains credulity, particularly in light of the absence of any other indicator of combat. Similarly, the April 1997 treating VA doctor indicated a PTSD diagnosis on an incomplete and inaccurate record; he indicated no stressor information of any kind, and referred merely to symptoms of flashbacks and nightmares. A valid diagnosis of PTSD cannot exist absent a stressor. While no direct inaccuracy is cited by the evaluator, the rationale for the rendered diagnosis is not obvious and cannot be deduced. The treatment report is not sufficient to support a finding of PTSD, as the consultation report is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The sole competent and credible examination, from February 2013, finds no diagnosis of PTSD is warranted, based on an accurate factual history. Importantly, the examiner discusses the updated standard for adequacy of stressors. If a claimed stressor relates to fear of hostile military or terrorist activity, then lay testimony may establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary, if 1) 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 symptoms are related to the claimed stressor; and 2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. "Fear of hostile military or terrorist activity" means that the Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others. 38 C.F.R. § 3.304(f)(3). The February 2013 examiner effectively found that the allegations of the Veteran were not sufficient to support a diagnosis, noting the allegations cited to support the report of fear could not be credited. The Board agrees. The Veteran was present in Vietnam for five weeks; the sheer volume of events he alleges during that time is staggering, particularly in light of the fact that his unit was stationed in a rear area. The Veteran's wide-ranging allegations are not credible; this finding also raises questions regarding his reports of fear (beyond natural nervousness) generally while in Vietnam. Further, the examiner opined that even if stressors were conceded in light of the "hostile enemy action" regulation, no diagnosis of PTSD could be made in the absence of behavioral and clinical markers. The Veteran simply did not report any flashbacks, nightmares, disturbing thoughts, or similar re-experiencing related to military service. This is consistent with recent findings by treating providers. No other acquired psychiatric disorder was raised as part of the contention of direct service connection. Benefits are therefore not warranted on that basis. Service connection for PTSD must be denied in the absence of a current valid diagnosis of the condition at any time during the appeal. However, the currently diagnosed mood disorder, which is shown on current examination and to a lesser degree in ongoing VA treatment records, does support an award of compensation benefits. The sole medical opinion of record relates the current diagnosis, in at least some part, to the Veteran's service-connected physical problems, including his amputations, diabetes, heart disease, and neuropathies. The examiner is clear that the Veteran's "physical pain causes some psychiatric distress." This position is supported by treatment records showing the onset of increased depressive symptoms following the 1998 allergic reaction and complications, and showings of recurrent depression or other psychiatric symptoms in treatment records. The Board finds that the Veteran's current psychiatric problems, diagnosed as a mood disorder with depression and anxiety, have been aggravated by service connected disabilities, and benefits are therefore warranted. ORDER Service connection for PTSD is denied. Service connection for a mood disorder with depression and anxiety, is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs