Citation Nr: 1314725	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  09-29 285	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD). 


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1961 to October 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.    

The case was remanded by the Board in June 2012 to obtain current VA treatment records, provide appropriate notice, and afford the Veteran a new VA examination with a nexus opinion.  The records were obtained and associated with the claims file.  The Veteran was sent notice in July 2012 specifically regarding PTSD due to personal assault.  The Veteran was also afforded a VA examination in August 2012.  Therefore, a review of the record indicates that the Board's directives were substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board acknowledges that the issue was originally addressed as entitlement to service connection for an acquired psychiatric disorder, to include PTSD.  Subsequent to the June 2012 Board remand, however, the RO granted service connection for anxiety and major depressive disorder, which address the Veteran's acquired psychiatric disabilities and symptoms.  Therefore, the RO in the December 2012 supplemental statement of the case and the Board in this decision limit the issue to service connection for PTSD.  


FINDING OF FACT

When weighing the positive and negative evidence, the Board finds that the Veteran does not have a DSM-IV diagnosis of PTSD.  


CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The record shows that through VCAA letters dated in February 2008 and July 2012 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection.  The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).    

The VCAA letter to the Veteran was provided in February 2008 prior to the initial unfavorable decision in June 2008.  In this case, the Veteran was also advised of the criteria for rating a disability and those governing effective dates of awards in the February 2008 letter, prior to the most recent adjudication by the RO.  Additionally, as the Veteran's alleged stressor is non-combat related, the Veteran was informed of the criteria and potential sources of evidence regarding a personal assault PTSD claim in a July 2012 letter.     

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA examination reports, VA treatment records, private treatment reports, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

The Veteran was afforded VA examinations in March 2011 and August 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings.  Therefore, the examination reports are adequate to decide the claim of service connection.  Thus, further examination is not necessary regarding the issue on appeal.

Service Connection - Laws and Regulations

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).  

Service connection for PTSD requires:  (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  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.  See 38 C.F.R. § 3.304(f).  The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).  

Effective July 13, 2010, 38 C.F.R. § 3.304 (f)  was amended to eliminate the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." 75 Fed. Reg. 39,843  (2010).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Service Connection - Analysis

The Veteran contends that he has PTSD that is causally related to his service.  The Board notes that the Veteran did not serve in combat.  Thus the regulations regarding combat do not apply.  Additionally, the Veteran's claimed stressor does not relate to a fear of hostile military or terrorist activity.  The Veteran alleges that a non-commissioned officer racially discriminated against him, accusing him of opening another soldier's mail, continuously picked on him, and forced him to perform extra work.  

When not related to combat, service connection for PTSD requires, amongst other things, credible supporting evidence that the claimed in-service stressor occurred.  The provisions of 38 C.F.R. § 4.125(a) also require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).  Criterion A of the DSM-IV requires that the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.  

The Veteran was afforded VA examinations in March 2011 and August 2012.  The March 2011 examiner did not diagnose PTSD, specifically noting that he does not meet Criterion A for PTSD, in that he was not exposed to personal danger on active military duty, or any combat or non-combat situation, and did not react to the reported military stressors with intense fear, horror, or helplessness.  The August 2012 examiner also specifically stated that the Veteran does not have a diagnosis of PTSD that conforms to DSM-IV criteria.  The examiner found that the Veteran met Criteria B through F, but not Criterion A.  The Veteran reported his stressor as racially motivated prejudice.  He reported his stressor as being accused of opening a letter to the Chief Petty Officer, followed by being picked on and made to do extra drills.  The examiner noted that the stressor does not meet the Criterion A, finding it is not adequate to support a diagnosis of PTSD.  

The Veteran was psychiatrically assessed by private examiners in March 2000, March 2005, and July 2008 with no diagnosis of PTSD found.

Although the Veteran asserts that he has a current diagnosis of PTSD, the Veteran has not demonstrated that he has expertise in medical matters.  While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance.  In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent.  As to a diagnosis of PTSD, the Board finds that the diagnosis of such a disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence.

The Veteran is certainly competent to testify as to symptoms, such as nightmares, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis).  In this case, no competent evidence of record finds a diagnosis of PTSD.  Additionally, the Veteran's psychiatric symptoms have been diagnosed as separate acquired psychiatric disabilities and are already service-connected.  Therefore, the Veteran's lay statements regarding onset and continuity of symptoms have been considered.

The Board acknowledges VA treatment records that show a diagnosis of PTSD.  However, as seen in the April 2011 treatment record, when diagnosing PTSD, the examiner simply noted the stressor as traumatic memories stemming from basic training experiences.  The examiners described the stressors very vaguely and failed to address the DSM-IV stressor criteria.  In several treatment records, such as the July 2010 VA psychiatric assessment, the Veteran noted that he was uncomfortable talking about what the incident in boot camp was.  The diagnosis of PTSD at that time was made without any details regarding a stressor.  

The March 2011 and August 2012 examiners were fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions.  Additionally, they provided fully articulated opinions that included a reasoned analysis.  Therefore, the Board finds that the examiners' opinions are of more probative value than the Veteran's lay assertions that he has PTSD, or the notations in treatment records.

As the preponderance of the evidence is against the conclusion that the Veteran has a current diagnosis of PTSD related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied.  38 U.S.C.A. § 5107(b).    


ORDER

Entitlement to service connection for PTSD is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals 

Department of Veterans Affairs