Citation Nr: 1314429 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 08-20 389 ) 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) and major depression. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from September 1965 through September 1967, to include service in the Republic of Vietnam from October 1966 through September 1967, during which the Veteran participated in "Phase II" of the "Vietnam Counteroffensive." This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran filed a timely notice of disagreement in June 2007. After a statement of the case was issued to the Veteran in June 2008, the Veteran perfected his appeal in July 2008 via VA Form 9 substantive appeal. This matter was previously remanded by the Board in October 2011 and November 2012 for further claims development. The requested development having been completed, the matter again is before the Board. Records show that the Veteran executed a VA Form 21-22 in May 2006, naming the Virginia Department of Veterans Services as his appointed representative. As discussed in the Board's prior November 2012 remand, however, a June 2007 VA Form 21-22 was submitted by the Veteran naming Disabled American Veterans (DAV) as his appointed representative. Representation by the Virginia Department of Veterans Services was formally recognized by VA two days after the appointment of DAV in June 2007. Again, as noted previously by the Board, in October 2010 the Veteran notified VA in writing of his intention to revoke DAV's authority to act on his behalf pursuant to 38 C.F.R. § 20.607 and DAV submitted similar notification in December 2010. The December 2010 notification from DAV apprised VA that the Veteran intended to proceed in the future as a pro se appellant. While the Board acknowledges that DAV submitted additional arguments on the Veteran's behalf in an October 2011 brief and the Virginia Department of Veterans Services submitted a Statement of Accredited Representation in Appealed Case in March 2013, the record does not indicate that the Veteran ever filed a new VA 21-22 reinstating either DAV or the Virginia Department of Veterans Services as his representative, nor has the Veteran indicated any intention to do so. Accordingly, the Board does not recognize DAV or the Virginia Department of Veterans Services as the Veteran's current representative. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT The Veteran does not have a current diagnosis of an acquired psychiatric disorder, to include PTSD and major depression. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD and major depression, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2006, July 2007, October 2011, and November 2012 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Several of the letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records detailed by the Veteran have been obtained, to the extent possible. In that regard, both the October 2011 and November 2012 letters to the Veteran requested that he either provide private medical records relevant to his claim directly to VA or authorize VA to seek such records directly from the private providers. The Veteran did not provide any additional private medical records or authorization to seek such records following either request. Moreover, when requested to provide authorization for VA to obtain his private records during his November 2012 VA examination, the Veteran stated that he would provide those records directly to VA. To date he had not done so. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, pursuant to the October 2011 Board remand the Veteran was afforded a VA examination in October 2011. In its November 2012 remand, the Board found the resulting examination report to be inadequate and ordered another VA examination. The resulting November 2012 VA examination report is of record. Therein, the examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD or any other psychiatric disorder. The examiner provided extensive rationale for this conclusion and reconciled this conclusion with the November 2007 private record that included diagnoses of PTSD and major depression. In reaching her decision, the November 2012 examiner considered the Veteran's reported history, his current symptoms, review of the available private and VA treatment records, and a psychiatric examination. The examiner provided a sufficient rationale for the opinions expressed. Based on the foregoing, the Board finds the November 2012 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Based on the November 2012 VA examination report, the October 2011 and November 2012 letters to the Veteran, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its October 2011 and November 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In the instant case, however, there is no presumed service connection because the Veteran was not diagnosed with psychosis within one year of separation from service and, indeed, his current diagnoses are not categorized as psychoses. Notwithstanding, the Board will consider whether service connection is otherwise warranted for his claimed disabilities on a direct basis. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has an acquired psychiatric disability as a result of his military service. Specifically, the Veteran alleges he saw his best friend killed in front of him, had contact with dead bodies, and incurred general stress due to combat operations. The Veteran's service treatment records do not include any complaints, treatment, or diagnosis of a psychiatric disorder during service. The Veteran's September 1967 separation examination included a normal psychiatric examination. At that time, the Veteran also denied a history of depression or excessive worry, nervous trouble of any sort, frequent trouble sleeping, and frequent or terrifying nightmares. Indeed, the Veteran does not appear to contend that his psychiatric problems began during service. In that regard, the Veteran's May 2006 claim asserted that his PTSD began in March 2006. After service, a July 2006 treatment record included a denial of memory loss, confusion, difficulty concentrating, unusual stress, a history of mental or physical abuse, troublesome depression, mood swings, and a history of mental illness. By November 2007, however, the Veteran had sought treatment with a private psychiatrist and reported numerous psychiatric symptoms. These symptoms included: avoidance behavior, nightmares, hypervigilence, panic attacks, hallucinations, and depression. Based on the foregoing and a 20 minute examination, the private psychiatrist diagnosed chronic PTSD and chronic major depression. The psychiatrist prescribed several medications for the psychiatric symptoms. The Veteran was seen again in January 2008, this time for a total of 6 minutes. Again, he was prescribed psychiatric medication for his reported problems. A November 2009 VA treatment record included a report of ongoing private treatment for psychiatric problems. In May 2011, the Veteran reported ongoing problems with depression, agitation and sleep problems, despite the use of medication. He wanted to transfer his care to VA. The Veteran was afforded a VA examination in October 2011. The examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD or any other psychiatric disorder. Psychiatric testing showed results that were highly atypical and inconsistent with those seen in patients with genuine psychiatric disorders. As such, the testing was considered invalid. The November 2012 Board remand found the examination report to be inadequate because the opinion failed to discuss or distinguish the prior private treatment records that diagnosed PTSD and major depression. As such, the Veteran was afforded another VA examination in November 2012. The examiner noted review of the claims file. This examiner also found that the Veteran failed to meet all the criteria for a diagnosis of PTSD or any other psychiatric diagnosis. The examiner noted that a GAF score would not be assigned because the Veteran had inconsistencies in his symptom reporting, failed to take psychotropic medication, lived independently, and socialized at church. The examiner noted and discussed the private and public treatment records available and discussed them extensively. The Veteran currently indicated that he was unable to confirm what psychotropic medication he was taking, if any. The Veteran declined to provide an authorization to obtain his private treatment records, but promised he would send them directly. He did not. During the 2 hour VA examination, the Veteran did not appear moody or anxious, The Veteran was able to operate his cellular telephone, return to the doctor's office among numerous similar looking doors following psychiatric testing performed elsewhere, live independently, drive himself to appointments, shop, and go to restaurants, all of which were inconsistent with the results of the Veteran's psychiatric testing. The examiner considered the November 2007 diagnoses of PTSD and major depression, but observed that the interview was only 20 minutes (compared to the November 2012 VAX's 2 hours) and that the current examination was much more involved than the November 2007 examination. The examiner concluded that these differences were the probable basis for the difference of opinion in diagnosis. The Veteran's testing in 2011 and 2012 showed clear evidence of exaggeration of symptoms and the Veteran's life did not show evidence of problems with occupational functioning (as he worked for Ford for 33 years before retiring), he was active in church, and lived independently. Psychosocial stressors reported were consistent with the Veteran's age, phase in life, and widowed status. The examiner noted agreement with the conclusions of the October 2011 VA examination report that it was less likely than not that the Veteran's claimed condition was incurred in or caused by his military service, as a current diagnosis could not be made in light of the Veteran's exaggerated symptoms. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disability that was incurred in or is otherwise related to his military service. In that regard, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran meets the DSM-IV criteria for a diagnosis of PTSD or any other psychiatric disability during any period of his appeal. In reaching that conclusion, the Board acknowledges that there is potentially conflicting evidence as to the existence of a psychiatric disorder during the appellate time period. As discussed above, a November 2007 private treatment record included diagnoses of PTSD and major depression. By contrast and as discussed above, the November 2012 VA examiner specifically considered the Veteran's claims and the November 2007 evidence of record and concluded that the Veteran did not meet the DSM-IV criteria for PTSD or any other psychiatric disorder. The Board finds the examiner's discussion and reconciliation of her conclusions with the November 2007 private psychiatrist's diagnoses. As discussed above, the November 2012 VA examiner noted that the November 2007 treatment visit was only for 20 minutes and the subsequent January 2008 visit was for only 6 minutes. By contrast, the November 2012 examination was over 2 hours and included analysis of extensive psychiatric testing done in 2011 and 2012, which there was no evidence that the private psychiatrist had access to in November 2007 or, indeed, thereafter. Given the November 2012 VA examiner's extensive discussion and reconciliation of her conclusions with the November 2007 treatment record and diagnoses, the Board finds the November 2012 VA examination report the most probative medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that factors affecting the probative value of a medical opinion are whether the opinion is based on sufficient facts or data, is the product of reliable principles reliably applied to the facts, and the reasoning employed by the expert). The Board also has considered the Veteran's assertions that his current psychiatric disability was caused by his military service. The Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing depression or other psychiatric symptoms, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Given the Veteran's lack of demonstrated medical expertise, the Board concludes that his statements regarding a diagnosis of PTSD or any other psychiatric disorder and any link between such a diagnosis and his military service are significantly less probative than the conclusions of the February 2013 VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Moreover, the Board finds the Veteran's contentions particularly problematic, given that he has not reported ongoing psychiatric problems from service. Given this absence of a continuity of psychiatric symptomatology from the Veteran's military service and his overall lack of medical expertise, the Board affords the Veteran's current representations diagnosing PTSD or other psychiatric disorder and linking such a disorder to his military service very little probative weight. In summary, the most probative evidence of record concludes that the Veteran does not have a current diagnosis of a psychiatric disorder, to include PTSD and major depression. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs