Citation Nr: 1319217 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-47 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disability other than PTSD, to include depression and anxiety and as secondary to service-connected coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971, to include service in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file includes a May 2013 Informal Hearing Presentation from the Veteran's representative. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In the May 2013 Informal Hearing Presentation, the Veteran's representative raised a claim of entitlement to service connection for depression and anxiety as secondary to service-connected coronary artery disease. The Board notes that this is a new theory of the claim raised more than three years after a September 2009 VA examination. As will be discussed in more detail below, this examination report specified no current diagnosis of PTSD, but indicated an alternative psychiatric disorder of "rule out depressive disorder." Under these circumstances, the Board finds that the claim of entitlement to service connection for a psychiatric disability other than PTSD, to include depression and anxiety and as secondary to service-connected coronary artery disease, has been raised during the pendancy of this claim and must be considered as part and parcel of the case at bar. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Specifically, the Veteran now argues that his coronary artery disease is so severe that it causes him depression and anxiety. In view of these circumstances, the Veteran's claim for a psychiatric disorder has been bifurcated into two separate issues . For the reasons set forth below, the issue of service connection for a psychiatric disability other than PTSD, to include depression and anxiety and as secondary to service-connected coronary artery disease 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 It is not shown that the Veteran has a diagnosis of PTSD in accordance with VA regulations. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the claim decided herein, the record reflects that the Veteran was mailed a letter in September 2007, advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim. The Veteran was provided complete notice prior to the adjudication of the claim. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that all available service treatment records (STRs), service personnel records and post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran underwent the appropriate VA examination in September 2009. The Board acknowledges the Veteran's assertions that the examination was inadequate because the Veteran had trouble with the forms and the resultant attitude of the examiner. However, the Board finds that his examination is adequate for adjudication purposes. The examiner specifically stated that the examination took 90 minutes and that the Veteran was permitted as much time as he needed to include whatever additional information he wished, and that no concerns or complaints were voiced at time of the examination. Review of the examination report also indicated that the examiner reviewed the claims file and a complete rationale for the opinion provided. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. II. Service Connection for PTSD The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for PTSD there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App 128 (1997). Effective July 13, 2010, the regulations governing PTSD claims eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to his/her fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor; provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 75 Fed. Reg. 39843-52 (July 13, 2010); 38 C.F.R. § 3.304(f)(3) (2012). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 Fed. Cir. 2000). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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; 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 maintains that he has PTSD stemming from his military service. Specifically, he maintains that his unit was attacked by mortars and rockets, and he witnessed many wounded Marines, which caused fear and anxiety. See, e.g., March 2008 statement. The Veteran's STRs, including a September 1991 separation examination report, contain no mention of complaints, findings, or diagnosis of psychiatric disability. In August 2007, the Veteran submitted the instant claim. He maintains that he first sought treatment for PTSD in 2007. A December 2007 Vet Center treatment summary notes that the Veteran had been seen since September 2007 for symptoms including difficulty sleeping, anxiety, isolation, hypervigilence and anger. It was noted that these symptoms were "consistent with a PTSD diagnosis." It was also noted that the Veteran reported events in service wherein he believed his life and/or the lives of others were in danger. In February 2009 treatment summary, a Vet Center counselor noted that the Veteran continued to been seen for individual counseling for PTSD, as diagnosed by a "PTSD checklist." However, as will be discussed in more detail below, the above evidence does not constitute a diagnosis of PTSD within the meaning of VA regulations at 38 C.F.R. §§ 3.304(f), 4.125(a). A September 2009 VA examination report notes the Veteran's reported history of his unit being attacked by mortars and rockets in Vietnam, guys getting killed while out in convoys, and someone blowing himself up with grenades. The Veteran's current complaints included anger, dreams about Vietnam and depression. Psychological testing was completed. The diagnostic impression included an Axis I diagnosis as follow: No diagnosis (provisional), rule out depressive disorder, not otherwise specified. The examiner went on to comment that the results were inconsistent with a diagnosis of PTSD based on multiple objective tests and DSM-IV guidelines. After reviewing the claims file, the VA psychologist who examined the Veteran opined, "I cannot resolve the issue without resort to mere speculation." He further stated that "[d]iagnosis, medical opinion, and rationale are based on DSM-IV guidelines, the Veteran's C-file, and the current exam. PTSD was not diagnosed in the current exam because the results of objective testing did not conform to DSM-IV guidelines for the diagnosis of PTSD in the context of an external incentive (i. e. disability benefits). The Veteran's previous diagnosis of PTSD was conferred in a clinical context where different diagnostic guidelines apply, appears to have been based predominantly on his subjective report of symptoms, and was therefore inapplicable to the current exam." The examiner stated that the examination lasted 90 minutes and the Veteran was permitted as much time as he needed to include all the information he wished to provide. The examiner noted that the Veteran expressed no concerns or complaints when asked about his examination experience. The Board reiterates the Veteran's dissatisfaction with the September 2009 VA examination, as recounted in a November 2009 VA Form 9 and the accredited representative's brief. The Veteran noted that the examiner handed him some forms and told him to complete them. He stated that he cannot read and therefore he had a friend helping him with the paperwork which he believed upset the examiner. The Veteran has consistently asserted that he has PTSD related to traumatic events that occurred during active duty service. The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. That is the critical question here, i.e., does the Veteran have PTSD? See 38 C.F.R. § 3.304(f). In the absence of proof of a present disability there can be no valid claim for service connection. Brammer, supra. The record includes no medical treatment/evaluation report that shows a definite diagnosis of PTSD. While there are clearly indications of PTSD in the Vet Center reports, after reviewing the evidence of record, the Board concludes that the record includes no medical treatment/evaluation report that shows a definite diagnosis of PTSD under DSM-IV. The credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such clinical data or other rationale employed by the physician and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, while the Veteran was noted to have PTSD by his Vet Center counselor's unspecified criteria for such a diagnosis, the VA examiner found that the criteria for PTSD were not met under the criteria noted in DSM-IV, the criteria used for adjudication purposes. As the competent (medical) evidence of record does not include a diagnosis of PTSD based on identified supporting symptoms and related to a stressor event in service, the preponderance of the evidence is against a finding that the Veteran has such disability. See Brammer, supra. With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau, supra, the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this case, the criteria under Jandreau have not been met. For the claimed PTSD, the Veteran is competent to report his symptoms, but not to report that his symptoms are sufficient to constitute PTSD. Thus, the Board finds that his statements in support of this claim are only competent evidence that to the extent that he is reporting psychiatric symptoms. (The Board does not question the Veteran's experiences or his honorable service. Whether these had any effect on his present condition is a separate matter.) While he might sincerely believe that he has PTSD due to service stressors, as a lay person, he is not competent to render a medical diagnosis. As discussed above, the medical evidence shows that he does not have PTSD. Thus, current disability has not been established either through the clinical record or the Veteran's own statements. As such, the claim must fail. In sum, the record does not show the Veteran has had diagnosed PTSD in conformance with VA regulations at any time during the period under review. McClain, 21 Vet. App. 319, 321. As the Veteran has not shown a current disability for which service connection can be granted, the claims must be denied. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for PTSD is denied. REMAND In regard to the issue of service connection for a psychiatric disability other than PTSD, to include depression and anxiety and as secondary to service-connected coronary artery disease, the Board finds that additional development is necessary before a decision may be rendered. Specifically, the Board reiterates that the basis of this new argument is that the Veteran now argues that his coronary artery disease is so severe that it causes him depression and anxiety. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active duty service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). This includes claims by way of secondary service connection under 38 C.F.R. § 3.310 (2012), which provides that service connection may be granted for a disability which is proximately due to or the result of a service-connected disability, including by way of aggravation. In this case, the evidence is inconclusive as to whether the Veteran may be suffering from a psychiatric disorder other than PTSD that may nonetheless be related to service, to include the service-connected cardiovascular disease. While the September 2009 VA psychiatric examination report was definitive as to the absence of PTSD, it was left unclear as to whether the Veteran could be diagnosed with depressive disorder related to service or a service-connected disability. Specifically, the Board repeats that the Axis I diagnosis was: No diagnosis (provisional), rule out depressive disorder, not otherwise specified. Moreover, the Axis III diagnosis was "please see medical records." Thus, with respect to the narrow question of whether the Veteran may have a non-PTSD psychiatric disorder that is related to active duty service or service-connected disability, the September 2009 VA examination indicates that there may be such a situation, but is otherwise inadequate and incomplete for the purpose of making a definitive determination. The Veteran's more recent assertion that he has the psychiatric symptoms depression and anxiety as a result of his service-connected disability leaves open and unresolved the possibility that he may have a psychiatric disability other than PTSD, which may yet be related to service or service-connected coronary artery disease. In view of these circumstances, the Board finds that relevant additional records that may shed light on this matter since September 2009 ought to be sought, and that a new VA psychiatric examination report and opinion should be obtained to address whether there is a current psychiatric disability other than PTSD that may be related to service or a service-connected disability. 38 U.S.C.A. § 5103A(d) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any relevant psychiatric records from VA and/or any private records identified by the Veteran, which may have come into existence and have not been considered since the last RO adjudication. 2. After any new relevant evidence has been identified and obtained, schedule the Veteran for a VA psychiatric examination and opinion to determine the nature and etiology of any currently diagnosed psychiatric disorder, to include depressive disorder and anxiety disorder as secondary to service-connected coronary artery disease. The claims folder contents must be made available to the examiner for review. The examination shall be conducted in conformance with 38 C.F.R. § 4.125 and in accordance with the guidelines of DSM-IV. The examiner shall provide answers to the following questions: A) What is the Veteran's diagnosed psychiatric disorder or disorders, if any? The examiner shall make as definitive a diagnosis as possible. B) For each and/or every psychiatric disorder diagnosed, opine whether it is at least as likely as not (probability of 50 percent or greater) that any such psychiatric disorder was first manifested in service and/or is causally related to event(s) in service; or otherwise proximately due to or the result of his service-connected coronary disease (to the extent such disease is debilitating enough to cause or aggravate a psychiatric disorder). A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs