Citation Nr: 1318148 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-06 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD). 2. Entitlement to service connection for restless leg syndrome. WITNESSES AT HEARING ON APPEAL Veteran and Friend ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. The Board notes that these matters were previously remanded by the Board in April 2011 and November 2012 for further development. Upon review of the claims file the Board finds that the issues of entitlement to service connection for pain in the left leg and knee and entitlement to service connection for "chronic colinitis" [sic] were claimed by the Veteran in July 1994; however, there is no indication from the record that these issues were ever adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The entitlement to service connection for restless leg syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An acquired psychiatric disorder, to include PTSD and GAD was not shown in service, a psychosis was not manifested to a compensable degree within one year of the Veteran's separation from active service, and the Veteran does not have a psychiatric disorder that is otherwise related to his active service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD and GAD, was not incurred in or aggravated by active service and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify After reviewing the claims folders, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought in a May 2007 letter. Moreover, in the May 2007 letter, the Veteran was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that this letter was sent to the appellant prior to the June 2008 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, the notice requirements apply to all five elements of a service connection claim: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the May 2007 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and post service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran a VA examinations in August 2011 and July 2012. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time II. Legal Criteria and Analysis 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, service connection for PTSD based on an in-service stressor requires medical evidence establishing a diagnosis of the condition, 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. 38 C.F.R. § 3.304 (f). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a psychosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he is entitled to service connection for an acquired psychiatric disability, to include PTSD and GAD, as such disability was caused by his active service. At his February 2011 Board hearing, the Veteran testified that while he was on active service he had a lot of anxiety about being sent to Vietnam. He testified that even following his separation from active service, he continued to have nightmares about being in the military. He stated that he does not watch military movies or anything that has to do with military affairs. He testified that he experiences a lot of anxiety on a regular basis related to a fear of being late for appointments and not feeling settled in his home. A review of the Veteran's service treatment records (STRs) is silent for any complaints related to a psychiatric disability of any kind. On April 1971 separation examination, the Veteran's clinical psychiatric evaluation was found to be normal. The Veteran was afforded a VA examination in November 1994. At that time he reported that he began having nightmares while on active service, and that since his separation he has continued to have nightmares and they are usually triggered by watching a military movie. He reported a lot of stress, depression, and worry. Following mental status examination the Veteran was assigned a diagnosis of generalized anxiety disorder. The Veteran was afforded another VA examination in August 2011. At that time the Veteran described episodes of homesickness that caused him to be anxious while on active service. He reported that since his separation from active service he has continued to have nightmares of being deployed. After mental status examination, the examiner diagnosed a mood disorder, not otherwise specified. The examiner found that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD as he did not report experiencing a traumatic event that would qualify as a PTSD stressor and he did not serve in combat. The examiner opined that the Veteran's diagnosed mood disorder was less likely than not related to his active military service. He explained that as there was no evidence that the Veteran sought mental health treatment while on active service or that he had been exposed to some traumatic incident that would be sufficient to be associated with PTSD, and as his symptoms did not manifest within one year of separation from service, it appeared that his military service was only a focus of his symptoms from time to time, but not the cause of the symptoms themselves. The Veteran was afforded another VA examination in December 2012. At that time the Veteran reported that while on active service he was homesick and worried he would be deployed to Vietnam, which the examiner noted was normal fear experienced by many people at the time. He also reported problems with anxiety, depression, and excessive worry. After mental status examination, the examiner diagnosed a mood disorder, not otherwise specified, and opined that it was less likely than not caused by or aggravated by his active military service. The examiner explained that the Veteran attributed much of his symptoms to non-service related concerns. Specifically, the Veteran had reported that he was always worried about being on time, about paying his bills on time, and about getting Alzheimer's disease. The Veteran had also reported problems sleeping, which he had attributed to his excessive worrying. The Veteran had also reported recurrent nightmares, one of which had a military theme, the other of which did not. The examiner opined that while the Veteran's active service might be the focus of some of his symptoms, it is not the cause of his mood disorder. Also of record are private treatment records that show the Veteran has been receiving intermittent mental health treatment for his acquired psychiatric disability since as early as 1994. The records show that he has been variously diagnosed with psychotic disorder, major depression, and generalized anxiety disorder. An April 2007 letter from the Veteran's treatment provider at the Cornerstone Family Health Center stated that it was his opinion that the Veteran's depression and anxiety were related to his active military service; however, there was no rationale or supporting treatment records provided in conjunction with this opinion. Therefore it is inadequate for rating purposes. There is no further indication from the private treatment records that the Veteran's acquired psychiatric disorder is related to his active military service. Associated with the Veteran's "Virtual VA" file are VA treatment records that show he receives outpatient mental health treatment at the VA Medical Center. However, there is no indication from the treatment notes of record that his acquired psychiatric disability is related to his active service. Upon review of the evidence, the Board finds that service connection for PTSD is not warranted. In this regard, the Board notes that the Veteran has never been diagnosed with PTSD and at the August 2011 VA examiner determined that his reported stressor events did not include a traumatic experience sufficient to be associated with PTSD, nor was there evidence that the Veteran served in combat or endorsed a fear of hostile military or terrorist activity. The Board notes that the Veteran has reported that he feared he would be sent to Vietnam as a medical corpsmen; however, the December 2012 VA examiner stated that this was a normal fear for the time. Therefore, as the Veteran has not been diagnosed with PTSD, and has not been found to have a sufficient stressor event to warrant such a diagnosis, the Board finds that service connection for PTSD is not warranted. Furthermore, the Board finds that service connection for an acquired psychiatric disability, to include GAD is not warranted. In this regard, the Board places substantial probative weight on the VA examination reports of record. Specifically, the December 2012 VA examiner noted that the Veteran had recurring nightmares, only one of which had a military theme, and that he had excessive worry, depression, and anxiety. The examiner stated that while the Veteran's military service was the focus of the symptoms of his psychiatric disability at times, it was not the cause of these symptoms. The Board notes that at the December 2012 VA examination the Veteran reported that he was always worried about being on time, paying his bills, and getting Alzheimer's disease, none of which are related to his military service. The examiner opined that it was less likely than not that the Veteran's acquired psychiatric disability was related to his active service. The examiner is competent to offer the opinion and it is probative evidence in the matter. Because there is no competent (medical, as this is a medical question) evidence to the contrary, it is persuasive. The Board acknowledges the Veteran's assertions that his acquired psychiatric disability was caused, or aggravated, by his active-service. However, while the Veteran may sincerely believe that his acquired psychiatric disability was caused and/or aggravated by his active service, his statements are not supported by the medical evidence or record. Additionally, as he is a layperson without the specialized training necessary to address a complex question with respect to the etiology of an acquired psychiatric disability, and he does not cite to any supporting medical texts or treatises, he is not competent to provide a nexus opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for an acquired psychiatric disability, to include PTSD and GAD. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection is not warranted. ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD and GAD, is denied. REMAND Because the specific development sought by the Board's November 2012 remand was not completed, the issue of entitlement to service connection for restless leg syndrome must be remanded, once again, for a new VA examination and opinion. In the November 2012 remand, the Board requested that the Veteran be scheduled for a new VA examination to determine the nature and etiology of his restless leg syndrome. The Board specifically asked the VA examiner to opine "whether the Veteran's currently diagnosed restless leg syndrome was caused or aggravated by his military service..." A review of the December 2012 VA examination report shows that the VA examiner conducted a review of the Veteran's claims file; however, the examiner did not provide the requested medical opinion as to whether the Veteran's restless leg syndrome was caused or aggravated by his active service. Rather, the examiner simply stated that upon review of the claims file he did not see that the Veteran had been diagnosed with restless leg syndrome or that he had complained of symptoms of such in service. The Board finds that such statements are not adequate to form the opinion that was requested and therefore a new VA examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2011). The Board is aware that another remand further delays the ultimate disposition of this matter; however, this unfortunate consequence is due to the RO/AMC's inattention to the Board's instructions in the prior remand. The Board has no option but to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. And the Board errs if it fails to remand again for compliance.) Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a new VA examination by a medical professional with sufficient expertise to determine the nature and etiology of the Veteran's reported restless leg syndrome. The claims file must be made available to and reviewed by the VA examiner. All necessary tests and studies should be performed. After examination and review of the claims file, the examiner is asked to provide an opinion as to the following: (a) Does the Veteran have a diagnosis of restless leg syndrome? (c) Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosis of restless leg syndrome present during the pendency of the appeal is etiologically related to the Veteran's active service. The complete rationale for all opinions expressed must be provided. 2. The RO or the AMC should confirm that the VA examination and medical opinions provided comport with this remand and undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for restless leg syndrome. If the benefit sought on appeal remains denied, the Veteran should be afforded an appropriate supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M.W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs