Citation Nr: 1315862 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 06-00 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for cervical spine disability to include fused vertebrae and arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to July 1970, and from February 1986 to August 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas dated in December 2007. In August 2010, the Board remanded the matter in order to afford the Veteran a hearing as he requested. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2011. A transcript of the hearing is associated with the claims files. The claim was then Remanded by the Board in July 2012 for development. It has been returned to the Board for appellate review. Another claim remanded by the Board at that time, service connection for depressive disorder, was granted by the Appeals Management Center (AMC) in July 2012. The issues of increased ratings for depressive disorder, NOS, with posttraumatic stress disorder symptoms associated with residuals of cerebrovascular accident (CVA), and eligibility for a home adaptation grant have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for cervical spine disability is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT A diagnosis of PTSD conforming to the DSM-IV has not been rendered at any time during the pendency of this claim. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate VCAA notice in an August 2007 letter, prior to the December 2007 rating decision on appeal. The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Relevant VA records include those in the claims folder as well as those in Virtual VA, dated from 2006 through July 2012. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board remanded this matter in part in July 2012 to provide the Veteran an examination for his PTSD claim, and he was then afforded such an examination in December 2012. This examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. In this case, the medical evidence of record is sufficient to decide the claim. It reflects that the Veteran has undergone PTSD screening and multiple psychiatric examinations. As discussed below, the preponderance of the evidence shows that the Veteran has been diagnosed with other psychiatric disorders including depressive disorder with PTSD symptoms, but does not have PTSD. In sum, the Board is satisfied that VA has complied with its duties to notify and assist the Veteran. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 an in-service stressor; and credible supporting evidence that the in-service stressor occurred." 38 C.F.R. § 3.304(f). Section § 4.125(a) requires that diagnoses of mental disorders conform to the American Psychiatric Association DSM-IV diagnostic criteria. Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and 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 veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of the above amendment apply to applications for service connection for PTSD that (1) are received by VA on or after July 12, 2010; (2) were received by VA before July 12, 2010, but have not been decided by a VA regional office as of July 12, 2010; (3) are appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010; (4) were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010; or (5) are pending before VA on or after July 12, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In his stressor reports received at the RO in September 2006 and August 2009, the Veteran asserts that he had two primary stressor incidents in Vietnam. In August 1969, he was assigned to the 3-37 Infantry, 9th Infantry division, as the Artillery forward observer and was performing reconnaissance when his radiotelephone operator (RTO) stepped on a booby trap and was shredded, dying instantly. This was in Kien Hoa Province. The Veteran himself was knocked out for a few minutes but revived and took headache pills and continued on his mission. He has had tinnitus since then and is haunted by the death of this soldier. As he gets older, he is less able to control his emotions and has visions and hallucinations. The other incident occurred collectively in March, April, June and July 1969 at the 9th Infantry division base camp at Dong Tam. The base was subjected to nightly rocket and mortar fire which would ruin a night's sleep. Someone dropped a live hand grenade into the armory receptacle which exploded and killed two soldiers. Also, artillery batteries fired shells all night long next to his barracks. The cots would lift off of the floor. As an aerial military observer, he participated in flight missions and received an Air Medal. The helicopters he was in took ground fire which was unnerving. In November 2007, the RO made a formal finding of insufficient information to verify the Veteran's claimed PTSD stressors. The RO noted that the there was no corroboration of the Veteran's mine explosion. Although a person identified by the Veteran did die in April 1969, he died of a different cause than a mine explosion. A review of the Veteran's DD Form 214s and his SPRs show that in 1967 his specialty number and title was 13E20 FA Oper. & Intel Asst., the related civilian occupation for which was draftsman, map. His SPRs show that he served in Vietnam and earned medals to include the National Defense Service Medal, Good Conduct Medal, Sharpshooter and Expert Badges, Vietnam Service Medal, Bronze Star, Republic of Vietnam Campaign Medal, Overseas ribbon (2dAwd) Vietnam Cross of Gallantry with Palm (unit) VAMwP (Unit), Airman's Badge, aircraft crewman badge, air assault badge, army staff identification badge. He participated in the summer/fall TET counteroffensive in 1969. His overseas service in Vietnam is recorded. His military occupational specialties included multiple other entries to include cannon field artillery officer and psychological operations. He received a presidential citation with the Bronze Star medal for his performance as a Lieutenant during the period from April to June 1969 during the counterinsurgency in Vietnam. A review of the Veteran's STRs shows that throughout his initial period of service in 1966 and 1967, there was no indication that the Veteran had a psychiatric disability. He reported no depression or excessive worry, or nightmares, or nervous trouble of any sort, in April 1966, November 1967 and May 1970. He was found to be clinically normal upon mental status examination in May 1970. He was also found to be clinically normal upon mental status examinations and there is no other documentation of any psychiatric treatment while the Veteran was in the rest of his active service, including an April 1997 separation examination. VA treatment records date from August 2006 into 2008 do not show treatment for PTSD. An April 2007 PTSD screen score was 2 and the screen was classified as negative. Treatment records further reflect that the Veteran suffered a stroke in 2000 or 2001 and was left with left-sided weakness. Social Security Administration records reflect he was found disabled by a physician as of May 2004 due to late effects of cerebrovascular disease. Records from Brooke Army Medical Center show a finding of cognitive deficits as a late (CVA) effect in June 2005. Also noted in September 2005 and October 2005 is mood disorder due to general medical condition and depression. An evaluation in May 2006 of the Veteran post CVA indicate psychological symptoms include sleep disturbances with some "wild" dreams since ketamine infusion for chronic pain. The assessment included mood disorder due to general medical condition. The Veteran was referred by his caregivers at Brooke to T.G., Jr., for psychological evaluation in July 2006. Dr. G. noted that the Veteran reported that when he was prescribed opiates in 2005 and that he felt very doped up and severely depressed. He began having flashbacks of a buddy getting killed in Vietnam, and his wife reported he was acting very strangely. He quit taking the opiates cold turkey and the depression and flashbacks subsided but he continues to have occasional flashbacks about his experiences in Vietnam. Following testing and interview, the diagnostic impression was Axis I: depressive disorder (duration unknown) not otherwise specified with anxiety, PTSD, pain disorder associated with psychological factors, chronic; Axis II: Dependent and passive-aggressive personality characteristics, Axis III: Deferred to physicians; Axis IV: Current psychosocial stressors: chronic pain and disability; Axis V: Global Assessment of Functioning: current 45, estimated past year 50. In October 2009, the VA JSRRC coordinator noted that the stressors of being under mortar and rocket fire in Vietnam were confirmed. Thus, his stressor was considered verified. The Veteran was afforded a VA psychiatric examination for PTSD in November 2009. The examiner reviewed the claims folder. It noted that the Veteran treated with VA for medical issues since 2001 but was not receiving any psychiatric medications currently at VA or by non-VA providers. The examiner noted Dr. G.'s report and diagnoses, the negative PTSD screen in VA treatment, and the Veteran's statement in April 2007 to his treating provider that he did not wish to discuss PTSD as VA had disputed his service and he has received treatment in the private sector. She also noted the October 2009 VA JSRRC coordinator's verification of the claimed stressors in Vietnam. The examiner found that the Veteran did not show PTSD symptoms to include: persistent re-experiencing the traumatic event, the disturbance causes clinically significant distress or impairment in occupational or other important areas of functioning. Following interview and examination, the diagnosis was Axis I: depressive disorder, NOS, Axis III: stroke in 2001 and 2004. The examiner opined that this disorder was not due to his service but was a result of the stroke in 2004 that occurred after military service. During his hearing before the undersigned, the Veteran stated that he believes he has PTSD due to his experiences in service. He and his wife testified that he has nightmares of his aforementioned stressors. In December 2012, the Veteran underwent a VA psychological evaluation to determine whether he had PTSD. The examining psychologist reviewed the claims folder, interviewed and examined the Veteran, and completed a disability benefits questionnaire (DBQ). He noted that the Veteran did not have a diagnosis of PTSD that conforms to DSM-IV criteria because the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV. The current diagnosis was depressive disorder, (NOS). The examiner noted that the Veteran had depressive disorder and also traumatic brain injury in the form of a stroke in 2004. As to occupational and social impairment with regard to all mental diagnoses, the examiner found that a mental condition was formally diagnosed but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner stated that all of the Veteran's social and occupational impairment is related to the aftermath of his stroke. His mild depressive symptoms are not significantly impacting his overall functioning. The examiner noted that he reviewed the Veteran's claims folder and provided a detailed history of the Veteran's childhood, service and post-service years in the report. After service, the Veteran reportedly completed college and earned three Master's degrees. He related having no difficulty in his business life following service. His wife also provided information and indicated that after the Veteran's stroke in 2004, he was unable to do many recreational activities he used to enjoy with his wife and or his buddies. They still socialize with friends at dinner and she takes him to the gym to work out at least two days per week. He does not like crowds because of his physical condition. The Veteran offered that he serves as a mentor to some young guys who are in the military. The Veteran indicated that he was initially upset when his claim was denied because his stressor was not believed by VA. His wife noted that for years he never talked about his military experiences but he did display anger one time in 1972 when he pushed one of his friends against a wall. She noted that he has had nightmares across the years but not so much now. He moves his body in fight-like actions when he is having them but he cannot generally remember them. They also felt that he had a breakdown in 2004 when he was on many medications. He felt suspicious, paranoid and irritable. They felt this was PTSD related, but noted it stopped when he discontinued some of the medications. His mood was pretty good most days but he had some bad days. He became teary when this was discussed and said it was because of his physical condition which made him feel bad. His wife has reportedly felt it necessary to remove all weapons from the house. The examiner noted that the two Vietnam-related stressors met PTSD criterion A, inasmuch as he was exposed to a traumatic event which involved actual or threatened death and his response was intense fear, helplessness or horror. He also met criterion B as he has persistently re-experienced the event through recurrent or distressing dreams. He did not meet criterion C, D or E, however, as there was no persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, not present before the trauma, no persistent symptoms of increased arousal, not present before the trauma, and the duration of the symptoms of B, C and D was not more than a month, and the symptoms described did not cause clinically significant distress or impairment in social occupational or other functioning. The examiner noted that the Veteran demonstrated depressed mood, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood and suicidal ideation, but that none of these were related to PTSD. The examiner noted that although the Veteran had endured stressors which would justify the diagnosis of PTSD, he did not relate experiencing symptomatology at the level that would warrant the diagnosis of PTSD at this time. The only symptoms he related having was occasional nightmares depicting combat. While he is having difficulty functioning in some domains, the difficulties were directly related to physical limitations that have resulted from the stroke. Additional VA treatment records dated through July 2012 do not show ongoing treatment for PTSD. The Board acknowledges that, as discussed above, the Veteran has reported an event taking place during his service in the Republic of Vietnam as a PTSD stressor. This is accepted as criteria A by the examiners in the treatment record. The Board notes that the description of events is consistent with the facts and circumstances of service, and the Board does not question the veracity of the Veteran's statements. Nonetheless, there is no diagnosis of PTSD in the record that comports with the DSM-IV, as required by regulation. In fact, as noted above, the detailed 2012 VA PTSD assessment clearly and unequivocally sets forth an explanation of why the Veteran does not have PTSD. He does not meet the criteria for the diagnosis according to the DSM-IV. He has offered no competent evidence to discount the conclusions in this report. Therefore, the Board accepts the VA examiners' opinions that the Veteran does not currently have PTSD which is related to his active service. The Board has also considered Dr. G.'s report but finds it to be of less probative value that the VA opinion in 2012. Dr. G. did not discuss the basis for his diagnosis nor discuss the DSM-IV criteria. By contrast, the VA examiner thoroughly explained why the Veteran did not have PTSD and set forth exactly which PTSD criterion were not met. The examiner also conducted a review of the claims folder which considered Dr. G.'s report. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Thus, the Board finds the well-supported opinion of the VA examiner in 2012 to be more probative and entitled to greater probative weight in establishing whether or not the Veteran has PTSD. Accordingly, the medical evidence supports a finding that the Veteran does not have PTSD related to his active service. The Board has considered the Veteran's sworn testimony and accepts that he is competent to report his symptoms and treatment. Layno supra. at 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, to the extent that he reports that he has a particular psychiatric disorder, PTSD, he is not competent to render a diagnosis. The Court has held that in order for a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, as noted above, there is no evidence of record showing that the Veteran has been diagnosed with PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Service connection is not warranted. ORDER Entitlement to service connection for PTSD is denied. REMAND The Board is of the opinion that additional development is necessary prior to appellate review of the claim of service connection for cervical spine disability. In the July 2012 Board decision, the Board remanded the issue of service connection for cervical spine disability for examination to determine whether any current cervical spine disability was at least as likely as not due to service. The December 2012 examination of the cervical spine established that the Veteran has a congenital fusion of C5 and C6 along with degenerative disc disease of the cervical spine. The examiner opined that the, "current neck is not caused by or result of active duty." It was noted that the Veteran's congenital narrowing of vertebrae was a condition existing at birth. VA's General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). Further, controlling law dictates that a congenital defect is distinguished from a congenital disease in that "the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). No opinion has been provided as to whether the Veteran's cervical fusion: (i) constitutes a congenital defect, and, if so, whether there is any additional disability due to a superimposed disease or injury during service; or (ii) whether it constitutes a congenital disease, and, if so, whether it was aggravated by his period of active service beyond the natural progression. Answers to these distinctly medical questions are required prior to appellate disposition. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who performed the December 2012 orthopedic examination, or a suitable substitute. The examiner must review the claims folder, to include any pertinent medical records contained in any electronic repository for claims files. Based on the review, the examiner is asked to provide the following information: (a) Is the congenital cervical fusion noted in the December 2012 examination considered to be a "defect" or "disease" for VA purposes? In this regard, the examiner is to note that a congenital defect is defined as a condition that is more or less stationary in nature and a congenital disease is defined as a condition capable of improving or deteriorating. Please provide a complete explanation for the opinion. (b) If it is a congenital or development defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional disability of the cervical spine. Please provide a complete explanation for the opinion. (c) If it is a disease, was it at least as likely as not aggravated (i.e., permanently increased in severity) during active service. Please provide a complete explanation for the opinion. (d) If so, was the increase in disability clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. A complete rationale for the opinion must be provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Finally, after undertaking any other necessary development, readjudicate the claim in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken on the claim. An appropriate period of time should be allowed 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs