Citation Nr: 1318816	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  09-33 275	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Montgomery, Alabama



THE ISSUE

Entitlement to service connection for an innocently acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD).  



REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs



ATTORNEY FOR THE BOARD

H. Seesel, Counsel



INTRODUCTION

The Veteran had active service from October 1968 until June 1970. 

This matter initially came before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2008 rating decisions of the RO. 

The U.S. Court of Appeals for Veterans Claims (Court) has indicated that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  

In this regard, the Veteran previously filed a claim for service connection for posttraumatic stress disorder (PTSD).  The RO issued a rating decision in August 2006 and the Veteran filed a Notice of Disagreement in October 2006.  The RO issued a Statement of the Case in August 2008.  The Veteran did not file a Substantive Appeal.

The Court has held, however, that the filing period for a Substantive Appeal in a claim for VA benefits is not jurisdictional, and VA may waive any issue of timeliness in the filing of a Substantive Appeal, either explicitly or implicitly.  Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (as the RO had never addressed the issue of timeliness in the SOC and the Veteran was not informed that there was a timeliness issue until his claim was before the Board, the Court determined that the RO had essentially waived any objections it might have offered to the timeliness, and had implicitly accepted the Veteran's appeal).  

Furthermore, the Court has held that, as with the timeliness of a Substantive Appeal, in determining the adequacy of a Substantive Appeal, "the Board's use of a jurisdictional, i.e., nondiscretionary, analysis [is] not appropriate," and that VA may waive "any ... pleading requirements on the part of the appellant."  Percy, 23 Vet. App. at 47 citing Gomez v. Principi, 17 Vet. App. 369, 372-73 (2003).

Given the holdings in Clemons and Percy, the Board has recharacterized the issue to the broader one of service connection for an innocently acquired psychiatric disorder, to include major depressive disorder and PTSD.   

On his August 2009 Substantive Appeal (VA Form 9), the Veteran requested a hearing before a Member of the Board in connection with his claim.  

In September 2011, the Veteran withdrew this hearing request and indicated his case should be forwarded to the Board without further delay.  There are no other hearing requests of record.  Accordingly, the Veteran's hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(e). 



FINDINGS OF FACT

1.  The preponderance of the evidence demonstrates that the Veteran does not have a current diagnosis of PTSD.

2.  The Veteran is not shown to have an innocently acquired psychiatric disorder that had its clinical onset during his period of active service or for many years thereafter, nor is any shown to be causally or etiologically related to an event or incident of the Veteran's period of active service in Korea.



CONCLUSIONS OF LAW

1.  The Veteran does have a disability manifested by PTSD due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

2.  The Veteran does not have an innocently acquired psychiatric disability, other than PTSD, due to disease or injury that was incurred in or aggravated by active service; nor may a psychosis be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted.  

In the present case, letters sent to the Veteran in November 2004, March 2006, December 2007 and June 2012 fully addressed all notice elements.  The claim was subsequently readjudicated in a December 2012 supplemental statement of the case.

VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, records from the Social Security Administration, lay statements and the report of VA examinations.  

The Board finds that the July 2012 VA examination is adequate.  The examiner considered the Veteran's subjective history and complaints, performed a thorough physical examination providing all necessary findings to evaluate the claim, and provided an opinion supported by a thorough rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); 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.").  

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 


Law and Analysis

The Veteran seeks service connection for an acquired psychiatric disability, to include PTSD.  Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied.

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury was incurred in service alone is not enough.  Instead, there must be chronic disability resulting from that injury.  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). 

Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In certain cases, competent lay evidence may demonstrate the presence of any of these elements.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d). 

Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as certain types of psychoses.  38 C.F.R. § 3.384.  Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a).").  If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection.  38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336.  38 C.F.R. § 3.384 defines psychosis as including a brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder, not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.  38 C.F.R. § 3.384.

Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an inservice stressor. 38 C.F.R. § 3.304(f).  The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  Id.; 38 C.F.R. § 4.125(a). 

The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon the circumstances of the case.  VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required.  Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran's fear of hostile military or terrorist activity; and (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience.  38 C.F.R. § 3.304(f)(1), (f)(2), (f)(3), (f)(4).  In any of the above situations, 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 providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1), (f)(2), (f)(4). 

In the present case, although the Veteran has described a stressor involving fear of attack from North Korean forces that relates to fear of hostile military or terrorist activity under 38 C.F.R. § 3.304(f)(3), he does not have a current diagnosis of PTSD.  

The VA outpatient treatment records reflect frequent medical attention rendered for psychiatric symptoms; however, the diagnoses have been major depressive disorder, anxiety disorder, schizophrenia, adjustment disorder and mood disorder.  

While the VA outpatient treatment records include positive PTSD screens, these screens are a brief series of questions that identify people that are more likely to have PTSD.  See http://www.ptsd.va.gov/professional/pages/assessments/list-screening-instruments.asp; Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012) (explaining that a court may take judicial notice of facts of universal notoriety that are not subject to reasonable dispute).  

The fact that Veteran had a positive PTSD screen does not constitute evidence of a competent diagnosis of PTSD.  Id.  In sum, there is no indication the screening complies with a DSM-IV.  Under these circumstances, for the Board to conclude that the Veteran has a current diagnosis of PTSD would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993).  

Simply put, in the absence of current disability, a grant of service connection is clearly not supportable.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly the claim for PTSD must be denied.

As noted, however, the Veteran has been afforded other psychiatric diagnoses, including major depressive disorder, anxiety, schizophrenia, adjustment disorder, and mood disorder.  As such, the Veteran has a current disability.  The remaining questions are whether there is evidence of an inservice occurrence of an injury or disease and competent evidence of a nexus between any of the current disabilities and the inservice disease or injury.

Although the Veteran served in the Korea during the Vietnam, he does not assert, nor does the evidence reflect, that he engaged in combat with the enemy.  As such, the combat provisions of 38 U.S.C.A. § 1154(b) are not applicable to this case.  In addition, the service treatment records fail to reflect any complaints or findings referable to a mental disorder.  

In fact, a June 1970 medical clearance certificate reflected the Veteran was free from mental illness and a character, behavior or intelligence disorder.  The examination conducted in connection with the Veteran's separation from service described his mental health status as normal.  Addiitonally, on the June 1970 report of medical history the Veteran denied a history of depression or excessive worry, frequent or terrifying nightmares or nervous trouble of any sort.  

Indeed, the Veteran testified at the February 2012 hearing with a Decision Review Officer (DRO) that he never reported to sick call for depression or a nervous condition.  During this hearing, however, he described his fear during patrols and explained there were times he felt depressed and nervous but did not go to sick call.  

As there are no conflicting statements in the record, nor is there any evidence suggesting the Veteran was mistaken, the Board finds the Veteran's description of feeling depressed and nervous while in service to be credible.  See Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). 

The final element is competent evidence of a nexus between the current disabilities and the symptoms during service.  By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2). 

None of the records suggest any relationship between any currently diagnosed innocently acquired psychiatric disorder and an event or incident of the Veteran's period of active service.  

After reviewing the record and examining the Veteran, a VA examiner in July 2012 concluded that his depression was less likely than not incurred in or caused by service.  The examiner explained that the Veteran was never seen for a psychiatric problem during service or for many years after his discharge and had significant stressors that occurred after his discharge, including emotional abuse from two spouses and significant physical abuse from one spouse, and the death of a daughter who was killed in a motor vehicle accident.  

Furthermore, the examiner indicated that VA records indicated the symptoms of depression, insomnia and paranoia started after a head injury around 2003 or 2004.  

Accordingly, the examiner concluded the Veteran's major depressive disorder occurred after service and was related to post-military stressors.  

A review of VA outpatient treatment records shows that the records that include an opinion as to the etiology of the condition linking the disability to other causes.  For example, an April 2004 VA psychiatric treatment record concluded the Veteran had a personality change due to general medical condition paranoid type (head trauma) and a March 2007 record indicated the condition was secondary to his general medical condition.   

In initially seeking treatment for his psychiatric condition, the Veteran never mentioned any military stressors or suggested the onset of the symptoms during his service.   

For example, an April 2004 VA psychiatric treatment record reflected that the Veteran reported hitting his head 3-4 months before and experiencing paranoia and hearing voices after that incident.  The assessment was that of personality change due to general medical condition paranoid type (head trauma).  

During a May 2004 VA treatment visit, the Veteran only reported having stressors of financial problems and not having a job, but none related to his service.  A June 2004 VA record indicated that the Veteran described a head injury and felt that everything started after that.  

Similarly, the 2004 evaluations conducted for Social Security Administration (SSA) benefits purposes reflected that the Veteran never mentioned any symptoms or disturbing events during service or otherwise suggested his psychiatric condition might be related to service.  

During a June 2004 evaluation for SSA purposes the Veteran reported that he fell and sustained a head trauma in April 2004 and that fall resulted in some paranoid delusional thinking.  

A July 2004 assessment completed for SSA purposes concluded that it was unclear whether it was due to head injury in November 2003 or whether the symptoms represented a longstanding untreated depression.  

As these reports were prepared at a time when the Veteran was not seeking VA compensation, the Veteran's sole purpose in relaying the history was to obtain an accurate diagnosis and treatment for his condition. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  

The Veteran also provided lay statements, including statements of his sister and wife in connection with his claim.  These statements generally provide evidence of his symptoms and do not provide his statement as to the onset or etiology of the condition.  

During the December 2007 DRO hearing, the Veteran testified that he believed that his experiences in Korea contributed to his psychiatric disability.  While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, the Veteran here is proffering an opinion as to the cause, rather than the onset of the his psychiatric disorder.  38 C.F.R. § 3.159(a)(2) (defining "competent lay evidence" as any evidence not requiring that the proponent have specialized education, training, or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence is competent and sufficient in certain instances 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).  

An opinion as to the cause of a psychiatric disability is a complex medical question that would not be readily apparent to an average layperson, nor does it fall into any of the exceptions carved out by Jandreau.  

Indeed, such an opinion requires interpretation of symptoms, knowledge of the mental health field and consideration of the effects of other medical conditions, psychosocial and environmental problems and other levels of functioning.  See The American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 37-45 (4th ed. 1994) (describing the multiaxial assessment and explaining that it allows for considerations of mental disorders, general medical conditions, psychosocial and environmental problems that can all contribute to the mental disorder); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease).  

Thus, the Veteran's opinion in this regard is not competent evidence supporting his claim.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Layno, 6 Vet. App. at 470. 

As the Veteran has a diagnosis of schizophrenia and was also noted to have psychotic features, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis.  38 C.F.R. § 3.309, 3.385 (explaining psychosis includes schizophrenia and psychotic disorders).  

As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease.  In this case, the Veteran was not diagnosed with a psychosis during service.  Furthermore, he did not have characteristic manifestations of the disease process during service and thus the psychosis was not noted during service.  

As such, the chronic disease (schizophrenia and/or psychotic disorder) was not established and was subject to legitimate question during service.  Furthermore, there is no evidence reflecting a psychosis to a compensable degree within one year of the Veteran's separation from service.  Accordingly, in order to establish service connection the Veteran must demonstrate a continuity of symptomatology.  

A review of the record reflects no lay or medical evidence of continuity of symptomatology.  In fact, the first indication of any form of complaint or treatment for a psychiatric disability is a March 2004 VA treatment record.  Nothing at that time suggested an in-service onset.  In other words, there is a gap of nearly 34 years between the Veteran's discharge from service and the first treatment for his mental condition.  To the extent that the July 2004 assessment completed for SSA purposes suggested there was a longstanding untreated depression, the record specifically noted a period of only 3 or 4 years, dating the onset of the condition to 2000, a gap of 30 years.  Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

More significantly, there is not silence alone in the present case.  Rather, at separation from service in June 1970, the Veteran's psychiatric condition was evaluated as normal, and on his report of medical history, he denied the presence of depression or excessive worry and nervous trouble of any sort.  

The Board does not doubt the Veteran is sincere in his belief that his psychiatric disorder that is related to his service in Korea.  While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted.  

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Accordingly, on this record, service connection for an innocently acquired psychiatric disorder, to include PTSD, must be denied. 


ORDER

Service connection for claimed PTSD is denied.

Service connection for an innocently acquired psychiatric disorder other than PTSD is denied.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs