Citation Nr: 1313573 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 06-16 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to February 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge in April 2007, and a transcript of this hearing is of record. This case was remanded in August 2007, August 2008, and June 2011. In August 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to attempt to obtain records from the Social Security Administration (SSA). The Veteran's private and VA records have been obtained and he has undergone numerous VA examinations. In November 2012, a memorandum of unavailability was issued with respect to the SSA records. The action specified in the various Remands was completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board observes that as an initial matter, the Veteran's November 2004 claim specifically sought service connection for PTSD and the June 2005 rating decision denied service connection for PTSD without addressing the issue of entitlement to service connection for any other acquired psychiatric disability. However, a decision by the United States Court of Appeals for Veterans Claims (Court), in Clemons v. Shinseki, 23 Vet. App. 1 (2009) clarified the scope of a claim on appeal by holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Court in Clemons held that that the scope of a disability claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record. Accordingly, the Board has reframed the issues as shown on the title page of this decision. Thus, while, as indicated above, the RO has limited its adjudication of the Veteran's psychiatric claim to the matter of his entitlement to service connection for PTSD in this decision, for reasons explained below, the Board has now characterized the appeal as encompassing other diagnosed psychiatric disorders. The issue of entitlement to an acquired psychiatric disability other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT During the period on appeal, the Veteran has not had a diagnosis of PTSD that meets the DSM-IV criteria. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection The Veteran is seeking entitlement to service connection for PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2012). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2012). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by 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, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must 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. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's, which was filed after the revised regulation became effective. 75 Fed. Reg. 41092 (July 15, 2010) (codified at 38 C.F.R. § 3.304(f)). Here, the Veteran has described the following alleged in-service stressors. At his April 2007 Travel Board hearing, the Veteran testified that he injured his back in service after a vehicle fell on him and after that he was unable to perform his military duties. He claimed that this caused resentment among his fellow service members and that they responded by physically assaulting him, causing further injury. The Veteran also described extinguishing a fire on a fuel truck and has claimed that he has frequent, disturbing recollections of this incident. The Veteran's service treatment records are negative for any complaints of or treatment for an acquired psychiatric disability, to include PTSD. The Veteran's January 1981 separation examination was psychiatrically normal. Post-service, VA treatment records show recurring treatment for substance abuse, including cocaine dependence, cannabis abuse, and alcohol abuse, as well as diagnoses of a substance induced mood disorder and adjustment disorder. However, VA treatment records are negative for a diagnosis of PTSD. Indeed, multiple VA treatment providers have concluded that the Veteran does meet the DSM-IV criteria for PTSD. For example, at a December 2009 Mental Health Assessment, the VA staff psychiatrist examining the Veteran noted that he could "find no evidence of trauma, combat exposure, or PTSD symptoms" and observed that the Veteran's primary motivation appeared to be "getting paid like other veterans." The psychiatrist concluded that 'most of [the Veteran's] symptoms are due to poor decision making and coping and substance abuse." See VA Mental Health E & M Note (December 11, 2009); see also VA Attending Note (October 8, 2009). At an October 2011 Mental Health Diagnostic Assessment, a different VA psychiatrist noted that "[the Veteran's] history today is vague and difficult to follow, but I can find no evidence of sig[nificant] trauma, combat exposure, or symptoms that rise to the level of a PTSD diagnosis." See VA Mental Health E & M Note (October 20, 2011). Private treatment records from the South Arkansas Regional Health Center note a diagnosis of major depressive disorder, rule out PTSD. The Veteran was afforded VA examinations in February 2006 and July 2011. At the February 2006 VA examination, the examiner was unable to find evidence of a specific in-service stressor and he observed that the Veteran did not really complain of any PTSD symptoms. He concluded that the Veteran did not meet the DSM-IV criteria for PTSD. At the July 2011 VA examination, the Veteran recounted how a tanker truck caught fire and he single-handedly put it out. However, the examiner observed that the Veteran did not display any anxiety as he told this story. The Veteran also alleged that other service members had to take over for him after he was injured and he felt as if "everyone was against me." He indicated that he felt he was bullied, but did not describe any kind of physical confrontation. The Veteran also stated that he had difficulty coping with the loss of his mother two years ago. The Veteran reported that he thinks about things that happened in the military during the day. The Veteran also told the examiner that his spouse tells him he has nightmares because he talks in his sleep; however, the Veteran admitted that he is unable to recall what he is dreaming about and able to get eight hours of sleep each night. The Veteran reported a positive relationship with his girlfriend of twenty years. He had not worked since 1990, when according to the Veteran he stopped working because of health problems. He was unable to account for how he spent his time, other than to say he "just sits around." At the time of the examination, he continued to use crack cocaine and alcohol. Following the interview and a review of the Veteran's claims file, the examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD. The examiner explained that the Veteran did not report sufficient symptomotology to warrant the PTSD diagnosis and that the Veteran did not display any degree of agitation or discomfort when talking about his experiences in the military. Based on all the above evidence, the Board finds that entitlement to service connection for PTSD cannot be granted. As the Board noted above, establishing service connection for PTSD requires specific findings. These include a current medical diagnosis of PTSD which complies with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 3.304(f) (2012); see also 38 C.F.R. § 4.125(a) (2012). Here, there is no competent and credible evidence that the Veteran has been diagnosed with PTSD at any time during the pendency of this appeal. Multiple VA examiners, as well as VA treatment providers and private health care professionals, have treated or examined the Veteran and unanimously concluded that he failed to meet the DSM-IV criteria for PTSD. While the Veteran himself has insisted that he has PTSD caused by his military service, he has not demonstrated that he has any knowledge or training in diagnosing or determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the question of whether the Veteran currently has PTSD is too complex to be addressed by a layperson. This matter is not amenable to observation alone. Rather it is common knowledge that the symptoms and etiologies of mental illness are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion as to the existence and etiology of PTSD is not competent evidence and is entitled to low probative weight. Instead, the Board relies on the conclusions of the February 2006 and July 2011 VA examiners, as well as the Veteran's VA treatment providers, who have concluded based on their medical training and experience that the Veteran does not have PTSD. For all the above reasons, entitlement to service connection for PTSD is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in December 2004. This letter informed the Veteran of what evidence was required to substantiate his PTSD claim, as well as of VA and the Veteran's respective duties for obtaining evidence. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records. The RO attempted to obtain records from the Social Security Administration (SSA), but after multiple attempts failed, a formal finding of unavailability was placed of record. The Veteran was also provided an opportunity to present testimony before the undersigned Veterans Law Judge at his April 2007 Travel Board hearing. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran was afforded a VA medical examination for PTSD in February 2006 and July 2011. The July 2011 examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific/medical principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for PTSD is denied. REMAND In light of the current record and recent United States Court of Appeals for Veterans Claims (Court) precedent, the Board finds that further RO action on the issue of service connection for an acquired psychiatric disability other than PTSD is warranted. As noted above, in Clemons, supra, the Court held that the Board erred in not considering the scope of a Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, psychiatric diagnoses of record and other information. In this case, although the RO only adjudicated a claim for service connection for PTSD, the record reflects psychiatric diagnoses of record other than PTSD-including a diagnosis of major depressive disorder from South Arkansas Regional Health Care which appears to be based, at least in part, on the Veteran's alleged in service stressors. Thus, the record raises the matter of the Veteran's entitlement to service connection for a psychiatric disability other than PTSD. To avoid any prejudice to the Veteran, a remand for RO consideration of this matter, in the first instance, is warranted. See Bernard v. Brown, 3 Vet. App. 384, 393 (1993). In adjudicating this claim, the RO should attempt to obtain any additional relevant evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012) and should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain all outstanding pertinent records of mental health evaluation and/or treatment of the Veteran, to include any relevant VA treatment records dated since April 2012. The AMC/RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The AMC/RO should request that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. In its letter, the AMC/RO should explain how to establish entitlement to service connection for psychiatric disability other than PTSD. If the Veteran responds, the AMC/RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the requested action, and any additional notification and/or development deemed warranted, the AMC/RO should adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs