Citation Nr: 1316135 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-17 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to June 1974 and on active duty for training from January 1985 to February 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which in pertinent part, denied service connection PTSD. In a November 2012 supplemental statement of the case, the RO also denied service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2008, the Veteran testified at a personal hearing before a decision review officer at the RO. In June 2010, she failed to appear, without explanation, for a Board hearing, after an earlier scheduled on had been postponed. In a December 2012 statement, she stated that she only wanted a Board hearing if it could be held in Vincennes, Indiana; she was not able to travel to the RO in Indianapolis. Hearings are only scheduled at the various RO around the country. VA does not have the ability to conduct videoconference hearings in all cities throughout the United States. Consequently, the Board finds that the Veteran's request for a hearing before the Board remains withdrawn. See C.F.R. §20.702(d) (2012). The case was remanded by the Board in August 2010 and May 2012. The Board finds that the requested development has been substantially accomplished. As such, the Board concludes that further remand for the issues addressed in the decision portion of this document is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The most probative evidence shows that the Veteran does not have PTSD based on a verified stressor. 2. The most probative evidence shows that the Veteran's currently manifest psychiatric disorders did not have their onset in service and were initially diagnosed many years after discharge, including bipolar disorder. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(f), 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duties to notify and assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In January 2005, May 2009, July 2009, and September 2010 letters, issued prior and subsequent to the ratings on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence will be obtained by VA. She was also advised of how disability ratings and effective dates are assigned. The Board finds that any deficiency with respect to the timing of the notices provided is harmless because the claims were readjudicated post remand. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). The Veteran's representative has asserted in the recent brief in support of the claim that she was not properly advised on the types of evidence that may be utilized to substantiate a claim for service connection for PTSD based on an allegation of sexual abuse. However, that information was clearly delineated in a letter to her dated in September 2010. Consequently, the Board finds that the duty to notify provisions have been satisfactorily met. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, private and VA treatment reports, Social Security records, lay statements, and the Veteran's statements and personal hearing testimony. A review of the relevant examination reports reflects that the examiners reviewed the Veteran's past medical history, documented her current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board therefore concludes that the medical reports and opinions are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Consequently, the Board finds that VA's duty to assist has also been met in this case and further remand is not necessary. See Stegall, supra. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology of a disability from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as a psychosis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). Where there is a diagnosis of PTSD by a mental health professional, it is generally presumed to be in accordance with 38 C.F.R. § 4.125(a), and the stressors on which such a diagnosis are based are presumed to be sufficient to cause the Veteran's PTSD. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that her current psychiatric symptoms developed as a result of verbal and physical abuse by her ex-husband during military service. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a psychiatric disability or evidence of abuse. The Veteran claims that she did not report the abuse during service because she was afraid of retaliation from her husband. A review of her service personnel records do not reflect any evidence of factors that might be indicative of physical or sexual abuse, including reprimands, requests for counseling, a decline in performance, etc. She was discharged due to pregnancy. The post-service medical evidence of record shows that the Veteran has reported a variety of psychiatric symptoms since her discharge. These records also show that she was diagnosed on different occasions, throughout the pendency of the appeal, with numerous psychiatric disorders, including in conjunction with her reports of spousal abuse and violence prior to and during military service. These diagnoses include adjustment disorder, somatoform disorder, dysthymic disorder, major depression, PTSD, panic disorder, bipolar disorder, and a personality disorder. However, the diagnoses that were consistently and most recently made include somatoform disorder, dysthymic disorder, depression and bipolar disorder. In response to the Board's January 2012 remand, the Veteran was afforded a VA examination in November 2010. She reported childhood abuse, as well as spousal abuse (physical, sexual and mental) prior, during and after military service. She was given Axis I diagnoses of dysthymic disorder, somatoform disorder, panic disorder without agoraphobia, bipolar II disorder, and noted to be depressed by history. The examiner concluded that the Veteran did not meet the full diagnostic criteria for PTSD, although she did have diagnoses whose symptoms overlapped with PTSD. He explained that it was difficult to determine if the level of childhood abuse experienced by the Veteran was sufficient to meet Criterion A, however, in response to that abuse, she developed bipolar II disorder, dysthymic disorder and borderline personality disorder, which influenced a poor psychosocial adjustment throughout adolescence and into adulthood. He explained further that adult abuse, even if as severe as reported by the Veteran, did not fit Criterion A, but following the onset of adult physical and sexual abuse before and during military service, she also developed somatoform disorder, depression became chronic, and under stress, she would become suicidal and have anger and dissociative episodes, yet her dependant and borderline personality traits kept her in and led her to contribute to abusive situations. The examiner concluded that the Veteran's reported PTSD symptoms were better accounted for by dysthymic disorder, panic disorder, and borderline personality disorder with dependant and passive-aggressive traits (Axis II pathology), which showed a developmental tendency to contribute to and self-perpetuate abusive circumstances and relationships. The Board concludes that the evidence does not support a finding that the Veteran has PTSD or another psychiatric disorder that had its onset in service. Moreover, the clinical evidence in the file does not establish that bipolar disorder (a psychosis) was manifest to a compensable degree within one year of her discharge from military service. As detailed above, the most probative clinical evidence - the November 2010 VA examination report - shows that the Veteran does not have PTSD as a result of her military service. This opinion was based on a full review of the Veteran's claims file as well as a thorough clinical evaluation. As such, the Board has accorded in significant probative value. See Winsett, Bloom, supra. Accordingly, in the absence of a current and valid diagnosis of PTSD, there is no disability for which service connection may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (service connection may not be granted unless a current disability exists). Additionally, the Veteran denied depression or other psychiatric symptoms in her Report of Medical History prior to discharge, and clinical evaluation upon separation indicated that she was within normal limits psychiatrically. There is no indication that the Veteran experienced a psychiatric break or psychiatric impairment during her period of active duty for training in 1985. Moreover, there are virtually no clinical records documenting complaints of or treatment for depression, bipolar disorder, or other psychiatric impairment until the early 1990s - more than 12 years after separation from active service in 1974 and more than five years after her period of active duty for training. The Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran has alleged continuity of symptomatology since discharge, the Board finds that she is competent to provide testimony as to having experienced depressive symptoms during service as well as after her discharge. Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, she is not competent to diagnose herself with a psychiatric disorder, including dysthymic disorder or bipolar disorder, or to attribute any specific complaints to a specific cause. Id. Simply stated, the Veteran's opinion regarding the presence or etiology of a psychiatric disability, including bipolar disorder and dysthymic disorder in service or shortly thereafter lacks probative value and it does not constitute competent medical evidence. Psychiatric diseases are complex disorders that requires specialized training and testing for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Hence, the Veteran's statements therein cannot be accepted as competent evidence sufficient to establish service connection. See Jandreau, supra. Moreover, the Veteran's statements regarding continuity of symptomatology are not credible. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). In this case, although the Veteran has asserted continued depressive symptoms since her discharge from service, she did not report any such difficulties upon separation examination and she did not seek professional help for her reported symptoms until the 1990s, more than 12 years after discharge from military service. In a February 1990 VA treatment note, the Veteran did not mention spousal abuse. In an October 1991 private mental status evaluation report, she indicated that the onset of her depression goes back to "bouts as a teenager" and worsened in the last few years. She did not mention spousal abuse during her military service. She noted that she was hospitalized for three weeks for depression while in the Army; however, her service treatment reports do not confirm this allegation. The Veteran filed her claim for benefits in 2004. Subsequent treatment reports denote complaints of depression since service as well as reports of spousal abuse during her period of active duty. Accordingly, based on the foregoing, which shows inconsistency, interest and bias in the Veteran's contentions related to her claim for VA benefits, the Board finds that the Veteran is not credible to the extent that she reports that she has had depressive symptoms since active service. See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board has considered the statements proffered by the Veteran that relate her psychiatric impairment to military sexual trauma (e.g., a February 2005 Vet Center intake form), but finds that they are lacking significant probative value because they are not supported by the clinical data contained in the record. In sum, the statements were made based solely on the Veteran's reported history, and as detailed above, the history the Veteran provided is not consistent with the evidence contained in the record. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Additionally, medical evaluation that is merely a recitation of a Veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez, 13 Vet. App. 282 (1999). Accordingly, the Board finds that the statements lack significant probative value. See Bloom, supra. In sum, the preponderance of the evidence is against the claim. Consequently, the Board concludes that service connection for an acquired psychiatric disability, to include PTSD, is not warranted. Gilbert, supra. ORDER Service connection for an acquired psychiatric disability, to include PTSD is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs