Citation Nr: 1316610 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-12 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from November 1961 to September 1965. Portions of his 201 file are associated with his claims folder and reflect that he is authorized to wear the Armed Forces Expeditionary Medal for the Vietnam Area of Operations while attached to and serving with Attack Squadron 23 onboard the USS MIDWAY (CVA 41) during the periods of April 10, 1965 to May 10, 1965, from May 21, 1965 to June 28, 1965, and from July 22, 1965 to August 24, 1965. He had reported for duty to commence a continuous tour of sea duty on the USS MIDWAY on March 21, 1964 so it remains unclear the nature of other sea duty other than the dates cited for the award. His DD 214 reflects a period of 1 year and 5 days of overseas duty and that he served as an AT-6610 (electronics technician). This appeal to the Board of Veterans' Appeals (the Board) is from actions taken by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Acting Veterans Law Judge on Travel Board at the VARO in July 2008; a transcript is of record. The Board notes that the Veteran filed a claim of entitlement to service connection for PTSD. However, the Court of Appeals for Veterans Claims (Court) has held that when a Veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Therefore, VA must consider whether the Veteran's psychiatric symptoms regardless of the label attached to them warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the issue as above. A VA Form 21-6789 is of record dated in October 2005 reflecting that the Veteran's appellate claim now pending is the original not an attempt to reopen an earlier claim, correcting the correspondence to him that he needed new and material evidence to reopen. In December 2008, July 2009, and November 2011, the Board remanded the Veteran's claim. The VA Appeals Management Center (AMC) continued the previous denial of the claims in May 2009, March 2011, and July 2012 supplemental statements of the case (SSOCs). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. FINDING OF FACT An acquired psychiatric disorder was not manifested during active service nor was it developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, anxiety, and depression, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), 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. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) 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). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in March 2005, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. The Board is cognizant of the fact that that the Veteran was not provided notice with respect to the effective date element of his claim. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's service connection claim, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the Veteran's claimed disability. In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. The Veteran's claim of entitlement to service connection for neurological residuals of injuries to the arms was denied based on elements (2), existence of a disability, and (3), connection between the Veteran's service and the claimed disability. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to these crucial elements. Because as discussed below the Board is denying the Veteran's neurological disability claim, elements (4) and (5) remain moot. Duty to Assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. The Veteran was afforded a VA examination in February 2009 and a VA opinion was obtained in November 2011. The examination report and addendum reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also 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]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. He was afforded a hearing before the undersigned in July 2008. Stegall As noted above, in November 2011, the Board remanded this case for further development. Specifically, these remands instructed the AMC to obtain an additional VA opinion as to whether the Veteran has an acquired psychiatric disorder related to active duty. As will be discussed in greater detail below, the RO obtained the requested opinion in November 2011. As such, the Board finds that the purpose of the prior remands has been fulfilled, and there has been substantial compliance with its prior remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). Analysis Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). 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) (2012). To establish a right to compensation for a present disability, 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'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). 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)(1) (2012); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not 'engage in combat with the enemy,' or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). In recent years, the regulations governing PTSD have been amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. Factual Background Service treatment records, include October 1961 and September 1965 examination reports, are negative for any complaints, treatment, or diagnosis of a psychiatric disorder. In an August 2002 VA mental health note, the Veteran complained of depressed feelings occasionally. In a January 2004 statement, the Veteran reported an in-service stressor including guns firing on the USS MIDWAY without warning which knocked him to the wall and floor, stunning him for several minutes. During a September 2004 VA mental health consultation, the Veteran reported heavy combat exposure during the times his ship was close to shore. He indicated that his occupation was record entry and loading bombs onto planes. He reported several incidents related to getting sealed into a compartment, having a friend go overboard, and being close to shore under heavy fire. He also reported being injured in a misfire, with resulting loss of consciousness for four hours. After a mental health evaluation, the diagnosis was PTSD. The provider noted that the Veteran reported some depressive symptoms, but did not appear to meet criteria for major depressive disorder at that time. In a January 2006 statement, the Veteran reported that in 1965 his ship fired on several shore targets, but all hands were not notified that firing would commence, and they were not given the opportunity to clear the deck. He indicated that they were notified after the first shot, after they were stunned. He noted that they were on full alert but not attacked. He also reported that his friend fell off the ship while tying down planes, and that the ship circled several times, but that his body was not recovered. During a July 2008 Travel Board hearing, the Veteran reported that his first stressor as when he was locked in a water-tight section of the ship with several other seamen. He testified that he did not receive any treatment during service, and that he was not currently receiving treatment. He reported memory problems, and relationship problems resulting in two failed marriages. The Veteran also reported stressors including when a friend of his fell off the fantail of the ship. During a February 2009 VA examination, the Veteran reported his stressor as the incident when his friend fell overboard from the carrier. He reported that he and another sailor "leaned on" each other after the incident. He denied any post-military traumatic events. He stated that he worked with the US Postal Service for one year after service, did "odd jobs" from 1966 to 1971, and was with the fire department from 1971 for 20 years. After a mental status evaluation, the diagnoses were anxiety and depression. The examiner noted that the Veteran reported that he did not witness the death of his friend and reported no feelings of intense fear, hopelessness, or horror in response to this event. He concluded that the Veteran did not meet the criteria for PTSD. He also pointed out that the Veteran gave no evidence that his reported anxiety and depressive symptoms cause any impairment of his social, occupational, or academic functioning. A June 2009 VA progress note included a diagnosis of PTSD. In a July 2009 VA mental health progress note, the Veteran reported having ongoing flashbacks and vivid memories as related to his military service (back/neck injuries, death of a friend, and combat zone gun fire). The Veteran underwent a VA examination in January 2011. The examiner conducted an interview of the Veteran, reviewed the claims file, and conducted a complete psychological examination. After considering the foregoing, the examiner diagnosed the Veteran with anxiety and depression, not otherwise specified (NOS). She thereafter stated that '[t]he etiology of [the Veteran's] symptoms of anxiety and depression cannot be made without resorting to mere speculation...' Thereafter, the examiner noted the Veteran does not have PTSD, and his claimed stressors are not related to the Veteran's fear of hostile military or terrorist activity. The examiner noted that the three stressors he claimed exposure to during the time he served aboard the USS MIDWAY did not meet Criteria C and F for a diagnosis of PTSD. Additionally, his symptoms complaints of anxiety and depression do not meet the DSM-IV criteria for any mood disorder or anxiety disorder. The Veteran reported no evidence of clinically significant distress or impairments (social, occupational or functioning in any other important area) due to his symptoms of anxiety or depression. VA Medical Opinion from Dallas VA Medical Center (VAMC) dated November 23, 2011 indicates diagnoses of anxiety disorder NOS, less likely than not caused by or a result of military service; and depressive disorder NOS, less likely than not caused by or a result of military service. The provider noted that symptom complaints of anxiety and depression given by the Veteran did meet DSM-IV-TR diagnostic criteria for the two disorders listed. However, he indicated that the disorders were less likely than not caused by or a result of military service. He noted that there was no evidence that service led to significant impairment in social/occupational/recreational activities. He pointed out that the Veteran was successfully employed by the fire department for twenty years between 1971-1991. He also noted that the Veteran reported good relationships with his children and siblings, and that he was the primary caretaker for his elderly mother. He indicated that the Veteran owned his own photography business for a time and still practiced photography as an avocation. He concluded that it was most likely that the Veteran's current depressive and anxiety symptoms were related to his complaints of memory problems, starting toward the end of a twenty year fire department career and continuing since that time; having to care for his elderly and ill mother; financial stress; and divorce in recent years. PTSD As an initial matter, the Board notes that the claims file contains no evidence that the Veteran received any awards or decorations indicative of combat, and there is nothing in his service records suggesting that he ever served in combat. Therefore, the Veteran's claimed stressors cannot be presumed to have occurred under 38 U.S.C.A. § 1154(b). With regard to verifying the Veteran's reported stressors, the Board notes that, though the Veteran has consistently reported that he was on ship when his friend, E.B., a fellow seaman, died after falling overboard. The RO attempted to verify the Veteran's stressor and determined that this stressor was not credible. A search of the Vietnam Veterans Memorial wall information indicated that E. B. was a non-hostile sea casualty offshore from South Vietnam. He drowned in November 1965, two months after the Veteran separated from active service. The Board notes that the claims file contains VA treatment records noting the Veteran as having a diagnosis of PTSD related to witnessing the death of his friend in service. Although the medical evidence includes diagnoses of PTSD related to his experience, there is no credible supporting evidence that a claimed in-service stressor occurred. In this regard, as noted by the AOJ, this claimed stressor occurred following the Veteran's separation from service. Moreover, the Veteran himself has reported to a VA provider that he did not witness the event. As such, the Board concludes that the diagnosis of PTSD based on this reported stressor cannot serve as the basis for a grant of service connection. The Board also considered the Veteran's claimed stressors of being locked in a compartment and a head injury after a misfire; however, there is no indication in the deck logs or in the Veteran's service treatment records which verify this stressor. Additionally, the Board has considered the impact of the July 13, 2010, amendment on the Veteran's claim. Only during the September 2004 VA evaluation did the Veteran claim a stressor to include hostile fire. The Board notes that during the VA examinations dated in February 2009 and January 2011, the Veteran reported his main stressors as the death of his friend, being locked in a sealed room, and being stunned by a close-firing gun. The January 2011 VA examiner specifically stated that the Veteran did not have PTSD, and, using the specific language of the statute, also found that his claimed stressors were not related to the Veteran's fear of hostile military or terrorist activity. The Board therefore finds that the evidence weighs against a diagnosis of PTSD based on a presumed combat stressor. As the Veteran's stressors are not combat-related and not related to the Veteran's fear of hostile military or terrorist activity, the Board finds that the requirement for corroborating the claimed in-service stressor has not been eliminated, as the claimed stressors are not consistent with the places, types, and circumstances of the Veteran's service. The Board acknowledges that there is a conflict regarding whether the Veteran has a diagnosis of PTSD. Two VA examiners have determined that the Veteran does not meet the criteria for such a diagnosis. In assigning high probative value to the February 2009 and January 2011 opinions, the Board notes that the examiners had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Rather, they provided a full discussion of the Veteran's documented history and of his own reported history before ultimately concluding that the Veteran did not meet the criteria for a diagnosis of PTSD. The Board thus finds the VA examiners' opinions to be of greater probative value than the Veteran's statements, or the unsupported diagnosis provided by the September 2004 VA treating psychologist. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, the Board concludes that the weight of the evidence is against a finding of a PTSD diagnosis conforming to the DSM-IV at any time during the course of the appeal. Therefore, the holding in McClain is inapplicable. Under these circumstances, the Board must conclude that the Veteran has not met the regulatory requirements of entitlement to service connection for PTSD, and that, on this basis, his claim must be denied. Psychiatric Disorder other than PTSD For all other diagnoses, excluding PTSD, the Board finds service connection for an acquired psychiatric disorder other than PTSD is also not warranted. The Veteran does have a current diagnosis of depression and anxiety. However, the earliest medical evidence of depression dates from August 2002, more than 35 years after discharge from service. The passage of many years between discharge from active service and the medical documentation of a claim disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board notes that there is no competent medical opinion supporting his contention of depression due to active duty. Furthermore, the November 2011 VA examiner provided an opinion at the request of the Board has indicated that the Veteran's depression was less likely than not related to his active duty. The examiner found depression and anxiety are related to his complaints of memory problems; having to care for his elderly and ill mother; financial stress; and divorce in recent years. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). In sum, the Board has carefully considered the statements regarding the Veteran's psychiatric disability. While the Board does not doubt the sincerity of his belief that his acquired psychiatric disorder was a result of his active service, these claims turn on a medical matter. Though the Veteran may be competent to testify as to the sensory perceptions of his current disorder, questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Lay persons are limited to attesting to factual matters of which they have first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As a layperson without the appropriate medical training or expertise, the Veteran is not competent to render a probative opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Here, while the Veteran is competent to say he has psychiatric symptoms, he is not competent to say that his current psychiatric diagnoses are a result of disease or injury in service. Hence, the assertions in this regard do not constitute persuasive evidence in support of the claim for service connection. Given the absence of credible evidence that the Veteran's has a chronic psychiatric disorder in service, the absence of any opinion that the Veteran's current disorders are related to service, and competent medical opinions that they are not likely related, the Board must find that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder on any theory of entitlement. Consequently, the claim must be denied. As the evidence in this case preponderates against the claim, the benefit-of-the-doubt rule does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs