Citation Nr: 1317825 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-02 968 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 1972 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision by the RO which denied, in part, the benefits sought on appeal. A notice of disagreement was received in December 2005, a statement of the case was promulgated in January 2007, and the Veteran perfected his appeal in January 2007. The Board remanded the appeal for additional development in November 2010 and 2012. FINDINGS OF FACT 1. The Veteran did not engaged in combat with the enemy during military service. 2. Credible supporting evidence of an in-service stressor sufficient to support a diagnosis of PTSD has not been demonstrated. 3. The Veteran does not have an acquired psychiatric disorder, including PTSD, as a result of military service. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disorder, including PTSD, due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2004. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). With respect to the duty to assist in this case, the Veteran's service treatment records (STRs) and all VA and private medical records identified by the Veteran have been obtained and associated with the claims file. The Veteran was examined by VA at least twice during the pendency of this appeal, and was scheduled for a Travel Board hearing in June 2008, but failed to report, and did not request to be rescheduled. As such, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board finds that the VA examinations were comprehensive in scope and adequate upon which to base a decision on the merits of the issue on appeal. The Veteran underwent extensive psychological testing, and was interviewed and examined by a physician. The reports included a detailed description of the Veteran's medical history, a discussion and analysis of the clinical findings, and provided a rational explanation for the conclusions reached. The RO also undertook extensive development to attempt to verify the Veteran's alleged stressor, including a review of the Defense Personnel Records Information Retrieval System (DPRIS) and the Veteran's unit records, as well as inquires to the U. S. Joint Services Records Research Center, U. S. Marine Corps Archives and Special Collections Branch, and the National Archives and Records Administration. In February 2012, the RO made a formal finding that the alleged stressor could not be verified, and notified the Veteran in the supplemental statement of the case (SSOC) promulgated in June 2012. The Board finds that any additional record search would be futile. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Finally, the case has been subject to prior Board remands. The RO has associated all available treatment records with the claims folder and obtained an adequate medical opinion. As such, the Board finds that the RO has substantially complied with prior Board remand directives. Stegall, 11 Vet. App. 268 (1998). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection - In General Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Service connection for PTSD requires: (1) medical evidence diagnosing the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed, in-service stressor. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy" as established by official records, including recognized military combat citations, or other supportive evidence. If VA finds that the Veteran engaged in combat with the enemy and the alleged stressor is combat-related, then the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, VA determines that the Veteran did not engage in combat with the enemy or that the Veteran engaged in combat with the enemy but the alleged stressor is not combat-related, the Veteran's lay testimony, by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128, 142 (1993). The regulations pertaining to PTSD were recently amended and 38 C.F.R. § 3.304(f)(3) no longer requires the verification of an in-service stressor if involving "fear of hostile military or terrorist activity." Rather, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. Id. The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury if it involves a complex medical issue. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Factual Background & Analysis The Veteran contends that he has PTSD due to having witnessed the death of a fellow serviceman and close friend when he was struck by a train while on shore leave in the Spring of 1973. The Veteran asserted that he had to pick up the pieces of his friend's body and bring them back to the ship, and that he has been bothered by it ever since. Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Concerning the Veteran's contentions, while he is competent to provide evidence regarding his experiences and observations, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints). Regarding the Veteran's contentions, the Board notes that he has given numerous inconsistent and contradictory statements concerning the nature and circumstances of the incident and the individuals involved, which raise serious doubts as to his ability to provide accurate and reliable information and reflects negatively on his credibility. Specifically, in his original handwritten stressor statement, received in November 2004, the Veteran reported that he witnessed the death of his "best friend" and fellow Marine, "Wallace 'Bubba' be thrown on the railroad tracks by several Spaniards." He said that he watched, helplessly as his friend was run over by a train and then had to pick up the pieces. When seen by VA in October 2005, the Veteran reported a history of anxiety and depression since he returned from "Vietnam" and that his symptoms worsened after his son was killed by a drunk driver in 1990. Parenthetically, the Board notes that the Veteran's service records do not reflect any duty assignments to Vietnam. When seen by VA psychiatric services in February 2006, the Veteran reported that his buddy's death occurred in Turkey. However, when seen by VA in May 2006, he reported that his friend "Ronnie" was killed in Spain when some "Spanish guys" through him in front of a train. In his substantive appeal, received in January 2007, the Veteran reported that his friend Ronnie "(nick name Country)" was killed in front of his eyes in February or March 1973. In a letter received in December 2010, the Veteran reported that he and his friend Ronnie got into a scrap with "others" and that they fled, but that Ronnie "somehow got in front of a transport train" and was killed, and that he had to bring his remains back to the ship. Finally, when examined by VA in March 2012, the Veteran reported that while on shore leave in Barcelona, "several of us" were out drinking and got into a fight with a bunch of Spaniards. He said that they ran across the railroad tracks, but that the Spaniards "pulled Ronnie" in front of the train and was torn to pieces, and that he had to pick up the body parts. At this point, the Board notes that during the pendency of this appeal, the RO undertook extensive development to attempt to confirm the Veteran's alleged stressors. A response to a CURR request in May 2011, showed that the Veteran's ship, the USS Guadalcanal was moored in Barcelona, Spain from August 29, to September 14, 1973. The ships Medical Department records history did not show any deaths during the relevant period. One serviceman was admitted to a Barcelona hospital for a mild myocardial infarction, and his recovery was uneventful. Likewise, a search of the USS Guadalcanal deck logs from August 1 to September 30, 1973, and a search of records by the USMC Casualty Branch in Quantico, VA, found no incident report concerning the Veteran's alleged stressor. Similarly, a search of Marine Corps unit records from June to December 1973, failed to reveal any casualties or injuries from a train accident. With respect to the Veteran's assertions that he has been bothered by intrusive thoughts and nightmares of his friends body parts since the alleged train incident in service, the STRs do not show any complaints, treatment, abnormalities or diagnosis for any emotional or psychiatric problems in service. Additionally, the Board finds nothing in the service personnel records which would tend to reflect any significant change in his overall job performance or other evidence of behavior changes during service. His proficiency scores throughout his military service were excellent and ranged from 3.8 to 4.5, with a single score of 3.0 for general military subjects on a semi-annual evaluation in January 1974. The existence of a valid service stressor is a factual question for VA adjudicators, based on an assessment of the credibility and probative weight of all the evidence. The Board is not bound to accept the Veteran's uncorroborated accounts of alleged stressors during service, nor is the Board required to accept the unsubstantiated opinions that alleged PTSD had its origins in service. This is particularly true where there has been a considerable passage of time between punitive stressful events recounted by a veteran and the onset of alleged PTSD. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991), reconsidered, 1 Vet. App. 406 (1991). The Veteran's lay assertions regarding his claimed stressors are insufficient, standing alone, to establish service-connection. Moreau v. Brown, 9 Vet. App. 389, 396 (1996). Based on the evidence discussed above, the Board finds that the Veteran is not a credible or reliable historian, and that his assertions of the alleged stressor incident in service are not supported by any credible evidence. Accordingly, the Board finds that the Veteran is not a credible witness and declines to assign his allegations any evidentiary weight. Buchanan v. Nicholson, supra; Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Additionally, the Veteran was examined by VA psychiatric services in March 2012, to determine the nature and etiology of his psychiatric complaints. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints and medical history. The examiner noted that the Veteran's alleged stressors could not be verified, and indicated that he could not offer a diagnosis without further psychological evaluation. In May 2012, the Veteran underwent comprehensive VA psychological testing. On the Miller forensic assessment symptoms test, the Veteran's score was considerably above the generally accepted GAF, and strongly suggested exaggeration of symptoms and malingering of psychiatric presentation. Similarly, the Veteran's scores on the personality assessment inventory and the Negative Impression Management Scale produced an invalid test profile, and showed a very strong tendency to over report negative symptoms. The examiner commented that the Veteran's test profiles indicated exaggeration of symptom presentation and strongly suggested malingering of psychiatric presentation. The examiner opined that no diagnostic clarification was available given the Veteran's exaggeration and over reporting of symptoms. In an addendum report, dated in December 2012, the March 2012 VA examiner indicated that he reviewed the claims file, including the May 2012 VA psychological test results, and concluded that the Veteran did not have a current psychiatric diagnosis. The examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD or any other psychiatric disorder when he examined him in March 2012, and that his concern at that time was the validity of the stressors that the Veteran did report. He also noted that while a VA outpatient note in December 2006 included a diagnosis of noncombat PTSD, there was no description of the etiology. Similarly, while other VA treatment notes of record mentioned panic, anxiety and depression, those symptoms were not present when he examined the Veteran in March 2012, and that the Veteran did not meet the criteria for a diagnosis of PTSD or any other psychiatric disorder at that time. The examiner commented that when he examined the Veteran in 2012, he suspected malingering, and that the subsequent VA psychological testing supported his suspicions. He also noted that other physicians' notes of record referred to the Veteran's conflicting presentations and facts, and that no stressor had ever been corroborated despite numerous attempts. In this case, the Board finds the December 2012 VA opinion most persuasive as to whether the Veteran manifests PTSD or any other psychiatric disorder. The opinion was based upon a longitudinal review of the claims file which included a discussion of all relevant facts, including the positive diagnoses. The examiner offered a rational and plausible explanation for concluding that the Veteran does not have PTSD or any other psychiatric disorder that is related to service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Preteen v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). In contrast, the Board finds that the diagnoses of PTSD by a VA social worker in May 2006, and on a mental health note in December 2006 are less persuasive, as the reports did not include any discussion or analysis of the facts. Moreover, since the Veteran is not credible, any medical opinion based on this evidence is not probative. In the present case, the Board finds that the December 2012 VA opinion holds substantially more probative weight than the outpatient notes which do not separately discuss how the PTSD criteria have been met which, while presumed as conforming to DSM-IV, lacks any rationale to determine how the conclusions were reached. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that a medical opinion does not hold probative value when it fails to provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). The evidentiary record also included numerous private medical records showing treatment for various maladies from October 2002 to December 2004. While a few reports included assessments of panic, depression and anxiety, none of the reports even remotely suggested a causal relationship between the diagnoses and service or any incident therein. In fact, the Veteran never mentioned the alleged train stressor incident, nor did he report any history of symptoms related to service. The fact that the Veteran now claims to have been bothered by psychiatric symptoms since service, but never mentioned any such problems in any of the medical reports, further undermines his credibility. Based on the discussion above, the Board finds no basis for a favorable disposition of the Veteran's claim. Accordingly, the appeal is denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs