Citation Nr: 1315650 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 10-41 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to April 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a November 2011 rating decision, the RO denied service connection for an acquired psychiatric disorder (other than PTSD), to include psychotic disorder and depressive disorder not otherwise specified (NOS). The Veteran did not file a timely notice of disagreement; therefore, the November 2011 rating decision is final and that issue is not currently before the Board on appeal. In April 2012, the Veteran testified at a video conference hearing held before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to service connection for substance-induced psychotic disorder has been raised by the record, specifically in VA outpatient treatment records from March 2009 to June 2009 and June 2009 VA examination report. The Board notes psychoses is listed as a "chronic disease" under 38 C.F.R. § 3.309(a) and is defined to include substance-induced psychotic disorder under 38 C.F.R. § 3.384. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The weight of the competent and credible evidence of record does not show the Veteran has a diagnosis of PTSD during the appeal period. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by an April 2009 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the April 2009 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, statements from the Veteran, and a June 2009 VA psychiatric examination report. The VA examiner reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In April 2012, the Veteran testified at a video conference hearing held before the undersigned Acting Veterans Law Judge. The Veteran and his representative were informed of the criteria to establish service connection, specifically the existence of a current PTSD disability, and the opportunity to submit additional evidence in support of the claim on appeal. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the Veterans Law Judge who conducts a hearing fulfill the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, PTSD is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a), thus 38 C.F.R. § 3.303(b) does not apply in this case. Service connection may also 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). In making all determinations, the Board must 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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007). 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 the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the 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). 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 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 the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. Analysis of Service Connection for PTSD During the course of this appeal, the Veteran asserts that service connection is warranted for PTSD due to stressful events he experienced while stationed in Germany during active duty. After a full review of the evidentiary record, the Board finds that the weight of the competent and credible evidence of record does not show the Veteran has a diagnosis of PTSD during the appeal period. Since separation from service, VA outpatient treatment records dated March 2009, May 2009, June 2009, and July 2009 show the Veteran's Axis I diagnoses listed PTSD, cocaine/crack dependency, alcohol dependency, substance induced psychotic disorder, and depression NOS. On VA psychiatric examination in June 2009, the Veteran reported, in pertinent part, that since taking medication, his anxiety is less and hallucinations are less frequent. The Veteran denied the use of alcohol for quire some time and indicated "for a while in the Army there, [he] drank, but [he] never really like alcohol that much," and reported that he began smoking hashish while in service and denied subsequent use. In contrast, the examiner noted that the Veteran's treatment records suggest the Veteran has reported to others that he has been consuming up to a pint of whiskey per day for several years and this was part of the basis for a 45 day inpatient dual disorders program at a VA Medical Center earlier in 2009. Moreover, such records indicate the Veteran has used marijuana and hash since military service and has snorted cocaine and smoked crack cocaine fairly regularly for many years. The Veteran also reported he has been abstinent since going through treatment, but a VA outpatient treatment record stated he had "backslid and had begun using alcohol and cocaine again." The examiner concluded the Veteran is not a credible historian regarding his longest period of sobriety over the last 25 years. Following the clinical evaluation, the Axis I diagnoses listed alcohol dependence, crack cocaine dependence, and psychotic disorder NOS likely substance induced. The examiner also opined that the Veteran does not now appear to meet the full criteria for PTSD and does not appear to have ever met the full criteria for PTSD. The Board finds this June 2009 VA examination is the most probative evidence addressing whether the Veteran has a current diagnosis of PTSD. Specifically, the examiner reviewed the claims file, electronic medical record, psychology file, performed a 3 hour and 25 minutes clinical interview of the Veteran, and conducted a comprehensive mental status examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history, to include Axis I diagnoses of PTSD in VA outpatient treatment records, or that he misstated any relevant fact. Not only did the examiner address whether the Veteran had a current disability manifested by PTSD but the examiner addressed whether the Veteran had PTSD in the past. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient data on which to base the conclusion. Therefore, the Board finds the VA examiner's opinion to be of greater probative value. The Board acknowledges the Veteran is competent to report symptoms that he experiences and observes at any time because this requires personal knowledge as it comes through the use of his senses. See Layno, 6 Vet. App. at 470. He is not, however, competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of PTSD. See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). To the extent that he is deemed competent, his credibility is called into question. In particular, he has provided conflicting statement to medical providers and has not been deemed to be a credible historian. As such, the Board affords more probative weight to the VA examiner's opinion concerning the diagnosis and etiology of a current disability. Based on the evidence of record, the weight of the competent and credible evidence demonstrates the Veteran does not have a current diagnosis of PTSD or residuals therefrom. In addition, the Board finds that he has not had PTSD at any point during the appeal period. See McCLain v. Nicholson, 21 Vet. App. 319. 321 (2007). As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for PTSD. The Veteran was informed in the April 2009 VCAA letter that he must have evidence of a current disability for his claims on appeal. He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence. Since the weight of the competent, credible, and most probative medical evidence is against the conclusion that the Veteran meets the criteria for a diagnosis of PTSD, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted. See Brammer, 3 Vet. App. at 225. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for PTSD, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for PTSD is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs