Citation Nr: 1317823	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  09-32 124A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).


WITNESSES AT HEARING ON APPEAL

Veteran, Veteran's nephew


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel






INTRODUCTION

The Veteran served on active duty from July 1964 to July 1968.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

In December 2011, the Veteran and his nephew testified at a hearing before the undersigned Veterans' Law Judge.  A transcript of the hearing is of record.

In March 2012, the Board denied the claim for service connection for acquired psychiatric disability, to include PTSD.  That decision was vacated by the Board in June 2012 because there were outstanding VA treatment records necessary for adjudicating the claim.  Specifically, the Veteran submitted VA mental health records following his Board hearing that were not associated with the claims file at the time of the Board's March 2012 decision.  VA records are constructively part of a claims file, and thus in order to ensure that the Veteran was afforded due process of law, the Board's March 2012 decision was vacated, and the Board remanded the claim in June 2012 for additional development.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Finally, as noted in the March 2012 Board decision, the issue of whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for multiple sclerosis was raised by the record during the December 2011 Board hearing, but 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. The Veteran has not been diagnosed with PTSD based on any claimed stressor or fear of hostile military or terrorist activity, and the Veteran did not engage in combat with the enemy.

2. A psychiatric disability did not manifest during service or for many years thereafter and is unrelated to service.


CONCLUSION OF LAW

An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 4.125 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

A May 2008 VCAA letter explained what evidence was required to substantiate his claim for service connection for a right knee disorder.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

As noted above the Board recharacterized the claim of entitlement to service connection for PTSD more broadly in a March 2012 decision.  To the extent the VCAA notice letter did not take into account the recharacterized claim for service connection for an acquired psychiatric disability, to include PTSD, the Board finds that this error did not prejudice the Veteran.  In addition to the explanation about how to establish entitlement to service connection generally, the May 2008 letter informed the Veteran to provide VA with specific details of the stressful incident in service that pertains to his PTSD claim.

With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations.  See 38 U.S.C.A. § 5103A(a)-(d).  The RO also requested records from that National Personnel Records Center (NPRC) and the U.S. Army Joint Services Records Research Center (JSRRC) Coordinator.

The Veteran underwent a VA examination in June 2012 to obtain medical evidence as to the nature and likely etiology of the claimed disability.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The June 2012 VA examination report reflects that the examiner solicited symptoms from the Veteran, examined the Veteran, and provided a diagnosis and reasoned opinion consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, the examination report is adequate for rating of the Veteran's disability under the applicable rating criteria.

The Veteran was also afforded an opportunity to present testimony at a hearing before the Board.  During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim.  The VLJ also left the record open for a 60 day period following the hearing to allow for the submission of such additional evidence.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained.


Law and Regulations

Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service).  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). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

Service connection for certain diseases, including a psychosis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a) (2012).

In addition to the criteria set forth above, service connection for PTSD generally requires (1) medical evidence diagnosing the condition in accordance with the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV)); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressors occurred.  38 C.F.R. § 3.304(f) (2012); Anglin v. West, 11 Vet. App. 361, 367 (1998).

The evidence required to support the occurrence of an in-service stressor varies depending on whether a veteran was engaged in combat with the enemy.  If the evidence establishes that a 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 such veteran's service, then his or her lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2012); see also VA O.G.C. Prec. Op. No. 12-99, 65 Fed. Reg. 6,256-58 (2000) (holding that the phrase "engaged in combat with the enemy" requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality).

Where the record does not establish that the claimant engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot as a matter of law provide evidence to establish an event claimed as a stressor occurred.  Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Rather, the claimant must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred.  Cohen v. Brown, 10 Vet. App. 128, 147 (1997).

Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans.  See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010).  Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity."  Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states, 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 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. 75 Fed. Reg. 39,843- 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3) (2012).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis

As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy.  A finding that a veteran engaged in combat in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999).  The Veteran's DD Form 214 reflects that he received the National Defense Service Medal and Vietnam Service Medal, which by themselves, do not demonstrate combat.  The Veteran's military occupational specialty (MOS) was aircraft maintenance specialist.  In addition, in his June 2008 PTSD stressor statement, the Veteran wrote that on January 27, 1967, his base was attacked by an enemy sapper team and that there was a fire fight between the unit on guard duty and the sapper team.  He did not, however, indicate that he was involved in the fire fight.  Moreover, in a February 2009 memorandum, a JRSSC Coordinator found that the available evidence does not confirm that the Veteran was involved in any extraordinary stressful activities during services.  This included review of a document prepared by the Air Force documenting stand-off and sapper attacks on U.S. Air Bases in Vietnam and Thailand, which indicated that the first attack in Thailand occurred after the dates during which the Veteran served in Thailand.  Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable.

The Veteran's service treatment records contain no record of complaint, treatment, symptoms, or diagnoses of any psychiatric disorder.  The June 1968 separation examination indicated that psychiatric examination was normal.  In the accompanying report of medical history, the Veteran denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble.

In September 2006, the Veteran submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities.  His application, however, is silent for mention of a psychiatric disability.

In May 2008, the Veteran submitted a claim of service connection for multiple additional disabilities, including PTSD.

In June 2008, the Veteran responded to the RO's request for information regarding his PTSD stressors.  The Veteran reported that on January 27, 1967, his base was attacked by an enemy sapper team.

During the December 2011 Board hearing, the Veteran testified to experiencing nightmares of bombs blowing up for ten years.

A January 2012 VA treatment record indicated "rule-out" for PTSD, mild and noted a mood disorder related to a general medical condition.  The report indicated that the Veteran had witnessed events of "death and destruction" with memories that are intrusive.  In a February 2012 VA treatment record, the same examiner stated that the Veteran qualified for a diagnosis of PTSD; however the examiner noted the "MMPI-2 [was] technically invalid."  This is the first diagnosis of PTSD.

The Veteran was afforded a VA examination in June 2012.  The examiner reviewed the claims file, including a VA treatment record showing the diagnosis for PTSD, and interviewed the Veteran and his spouse.  The examiner noted that during the January 2012 psychological evaluation and the June 2012 VA examination that the Veteran did not mention whether his air base was attacked, but did report involvement with recovery of downed aircraft and other emergency incidents involving aircraft.  The examiner concluded that although the Veteran's claimed stressors met DSM-IV criterion A for an adequate stressor, that the Veteran did not exhibit symptoms meeting the criteria for PTSD.  He noted the Veteran may have met the criteria for PTSD in the past as the result of alcohol dependence, but he no longer meets the criteria for a PTSD diagnosis.  The examiner addressed the January 2012 diagnosis for PTSD, and noted the MMPI-2 elevated F scaled indicated embellishment or exaggeration for the purpose of secondary gain or as "cry for help."  In addition, the Veteran was diagnosed with depression and mood disorder related to multiple sclerosis.  The examiner stated that the Veteran's symptoms were related to the general medical condition of multiple sclerosis and not service.  

The Board finds that the claim must be denied.  The record lacks a probative medical opinion linking any psychiatric disorder to his period of active service.  The June 2012 examiner found the Veteran's fear of hostile military or terrorist activity met criterion A under the DSM-IV, but still found that the Veteran's psychiatric symptoms were not related to the in-service stressor.  Moreover, the June 2012 VA examiner found the Veteran's current psychiatric symptoms were due to his general medical condition of multiple sclerosis.  

In reaching this decision, the Board has considered the post-service medical evidence assembled in connection with the Veteran's claim.  This evidence includes the January 2012 and February 2012 VA psychiatric notes showing a mood disorder related to general medical condition and rule out PTSD.  The Board has carefully considered these records but finds that they do not provide a basis upon which to award service connection for a psychiatric disability.  Although the examiner found the Veteran qualified for a diagnosis of PTSD, there is no indication that such condition was causally related to the Veteran's active service or any incident therein.  Moreover, the February 2012 PTSD diagnosis was based upon invalid testing procedures as noted by the examiner.  Furthermore, the Veteran was subsequently screened for PTSD and other psychiatric illness and the reported symptomatology was attributed to the Veteran's general medical condition of multiple sclerosis. 

In summary, the Board finds that the most probative evidence shows that a psychiatric disability was not present during the Veteran's active service; a psychosis did not manifest to a compensable degree within one year of service separation; and the record on appeal contains no indication that the Veteran currently has any psychiatric disability, including PTSD, as a result of his active service or any incident therein.  

For the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against the claim of service connection for a psychiatric disability, to include PTSD.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for an acquired psychiatric disability, to include PTSD is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs