Citation Nr: 1319280 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 06-37 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active military service from April 1980 to April 1984 This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The RO denied service connection for depression in a June 2002 decision that is now final. However, service examination records were associated with the claims file after that decision was issued. These records were available at the time of the June 2002 decision. In such circumstances, the claim is considered an original claim of service connection. 38 C.F.R. § 3.156(c) (2012). Thus, the issue is characterized as entitlement to service connection for a psychiatric disorder, rather than new and material evidence. FINDING OF FACT A psychiatric disorder did not begin during military service, was not aggravated by military service, and is not causally related to military service. CONCLUSION OF LAW The criteria for service connection of a psychiatric disorder have not been met. 38 U.S.C.A. §§ 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The RO issued letters in August 2004 and November 2010 which advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Although the November 2010 letter postdated the initial adjudication, the claim was readjudicated in December 2011. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, with the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). 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). In addition, the duty to assist the Veteran has been satisfied. All available service and post-service medical records have been associated with the record, including those associated with the Veteran's application for benefits from the Social Security Administration (SSA). Moreover, the record does not suggest the existence of any outstanding, relevant records. Furthermore, the Veteran underwent a VA examination, and a VA examiner provided a medical opinion, with addendums. The Board finds the examination adequate for adjudicative purposes and the opinions probative as the examiner reviewed the claims file, conducted all necessary testing, and provided a detailed rationale for the opinions expressed, with explicit discussion of the reported stressor and the criteria which must be met to warrant a diagnosis of posttraumatic stress disorder (PTSD). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that an opinion's probative value is determined by whether it is supported by a detailed rationale). In September 2009, November 2010, and September 2012, the Board remanded for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review of the claim of service connection. Stegall v. West, 11 Vet. App. 268 (1998). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran contends that he has PTSD as a result of witnessing a plane explosion during military service. He indicated in a September 2005 statement that after witnessing the explosion, his behavior changed, and he began drinking. Service connection may be established for disability resulting from personal injury incurred or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); a link, established by medical evidence, between a veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). The Veteran's entrance examination record reflects no abnormal findings for the psychiatric system. Consequently, the Veteran is presumed mentally sound upon entry. The service treatment and examination records, including a February 1983 examination record, reflect no findings, histories, complaints, or diagnoses of a psychiatric disorder. VA medical records reflect treatment for psychiatric symptoms beginning March 2001. The records predominantly reflect diagnoses of alcohol dependence and major depressive disorder. The records also reflect diagnoses of bipolar disorder, a diagnosis of adjustment disorder in April 2002, a diagnosis of situational stress in July 2004, and PTSD from the Veteran's report in November 2007. The records reflect inconsistent histories as to the reported date of onset of symptoms. In May 2001 and January 2002, the Veteran reported histories of depression or recurrent episodes of depression since his teen years, when his mother died, and alcohol abuse since age 18, which intensified after he separated from his spouse. In August 2001, however, the Veteran reported depression for approximately two years, due to marital and job problems. In December 2001, the Veteran reported increased distress after his divorce. The Veteran added that although he used alcohol before and during military service, he did not feel he had a problem at that time. He explained that he was "really unsure" when alcohol became a problem, although he noted that he drank three to four beers to release stress from his post-military job and his drinking increased when he separated from his second wife. The records also reflect inconsistent statements as to when the Veteran first received treatment for his symptoms. In May 2001, the Veteran denied receiving any treatment until approximately 1998. However, in January 2008, he reported that he was hospitalized for a nervous breakdown after his mother died when he was 12 years old. Previous records do not reflect any such history, though a December 2001 record reflects a history that the Veteran's father was hospitalized for a nervous breakdown after the death of the Veteran's mother. Social Security Administration (SSA) decision records reflect the Veteran's histories of depression, PTSD, and memory problems. The records indicate that depressive disorder and alcohol dependence were diagnosed in April 2005 and that the Veteran was evaluated for PTSD, but PTSD was not diagnosed. An April 2005 VA examination record indicates that that the Veteran reported major depressive disorder and" probable" PTSD. The Veteran was assessed with major depressive disorder and "probable" PTSD. The examination report does not report any stressors. Subsequent treatment records reflect findings of depressive disorder, not otherwise specified, dysthymia versus major depression, and "possible" PTSD by a psychiatrist, and PTSD and major depressive disorder by a psychologist. A May 2006 statement from that a psychologist reveals the determination that a Personality Assessment Inventory suggested a "significant degree of emotional discomfort (depression, generalized anxiety, and Post Traumatic Stress symptoms) and abnormal psychotic-related cognitions." A March 2011 VA examination record indicates that the Veteran reported a long history of psychiatric difficulty. The Veteran indicated that he abused alcohol and marijuana after his mother's death when he was 12 and that he was hospitalized for a "nervous breakdown" after his mother's death. The examiner noted that the Veteran described a fairly chaotic childhood after his mother's death and described experiencing psychological abuse from his father. When asked about traumatic events during his military service, the Veteran described witnessing an explosion of a B-52 aircraft in January of 1983. The examiner indicated that it was difficult to get the Veteran to describe his reaction to this experience and to focus on this event, because he repeatedly digressed to discuss traumatic circumstances experienced as a civilian corrections officer. The examiner believed the Veteran discussed the other stressors because the Veteran believed they were equally a source of the claimed PTSD. The examiner noted that a February 2008 VA treatment record reflects the Veteran's history that he did not realize how much the aircraft explosion, along with his difficult childhood, had affected him until that day. The examiner believed that there were three separate sources of traumatic events: the Veteran's difficult childhood, his exposure to an aircraft explosion during his military service, and his exposure to several violent incidents during his employment as a prison guard. The March 2011 VA examiner noted that VA records reflected histories provided by the Veteran that there been a diagnosis of PTSD by various mental health professionals. The examiner reported that the associated documentation by these mental health professionals did not include diagnoses of PTSD, that no unmitigated diagnosis of PTSD was found in VA records, and that although the VA records reflected a diagnosis of PTSD, no specific traumatic event was identified in the associated notes. The examiner further noted that the initial VA mental health record for the Veteran dated in March 2001, indicated a history of treatment with tranquilizers and antidepressants by a private psychiatrist since 1998, and seizure-like activity and alcohol abuse since the Veteran was 18 years old. After describing the Veteran's symptoms, the March 2011 VA examiner indicated that although the Veteran clearly believed there had been a diagnosis of PTSD, there was very little documentation supporting this. Although PTSD was tentatively diagnosed at the April 2005 VA examination, this was only considered but not diagnosed. Furthermore, although the in-service explosion was a significant event, the examiner believed the Veteran was most affected by traumatic events to which he was exposed during his 15 years working as a corrections officer. The examiner explained that the most common re-experiencing symptoms reported were nightmares which were not clearly related to any specific stressor, but which contained more civilian themes and were devoid of military reference. The March 2011 VA examiner added that in addition to mild re-experiencing symptoms, the Veteran reported limited arousal symptoms. Excluding the arousal symptoms which were reportedly related to experience as a prison guard, the Veteran did not report sufficient arousal symptoms to meet diagnostic criterion-D for PTSD. Similarly, the Veteran reported an insufficient number of avoidance symptoms to meet criterion-C for a diagnosis of PTSD. In sum, the March 2011 VA examiner found the described symptoms were not sufficient to warrant a diagnosis of PTSD. The March 2011 VA examiner noted that the Veteran described a fairly pervasive and long-standing pattern of depressive symptoms, which seemed most suggestive of dysthymia, although recurrent major depression could not entirely be ruled out. The examiner indicated that the depressive symptoms seemed to have preceded the Veteran's military service and that there was not sufficient evidence to indicate that these were aggravated by any aspect of his military service, including the verified stressor. In an addendum provided in October 2012, the March 2011 VA explained that the diagnoses of dysthymic disorder vs. recurrent major depressive disorder indicated a chronic depressive state and that the best evidence for a disorder of this type predating military service was consistent indications in multiple histories, including hospitalization summaries, psychiatric intakes, or comprehensive notes entered into the Veteran's records. The examiner indicated that the record revealed the Veteran's histories, beginning in 2001 through at least 2008, of psychiatric hospitalization at age 12 after the death of his mother and chronic depression, as well as alcohol abuse dating from that point. However, the examiner noted that contemporaneous records of that hospitalization were not available for review. The examiner found that later indications of a hospitalization of this type may, nonetheless, constitute a factual predicate, although the source of information was the Veteran's account of his personal and treatment history. The examiner explained that there was inconsistency in the Veteran's self-report of such treatment, notably at entry to service. However, the examiner determined that it "seemed likely" that this denial of previous treatment was motivated to avoid creating an obstacle to enlistment. The examiner believed the Veteran's account of this late childhood hospitalization was consistent across his psychiatric records and was confirmed by him during the previous examination and that these accounts were not doubted for clinical purposes. The March 2011 VA examiner added that even assuming that the depressive condition did not precede service, there was not sufficient evidence to attribute it to service. The military service related stressor, witnessing the explosion of a B-52, was not sufficient to engender the chronic depression for which the Veteran has been treated. The examiner added that a period of approximately 14 years between the Veteran's discharge and first treatment for depression by a private psychiatrist made it "less likely than not" that the depression could be attributed to any aspect of the Veteran's military service. The examiner noted that the Veteran's second divorce was identified as the precipitant for his depression and treatment at the time of initial treatment and that, during the previous VA examination, the Veteran attached greater significance to stressors related to his post-military employment than to the B-52 explosion. Service connection is not warranted for PTSD. Although a psychologist diagnosed PTSD, the psychologist did not relate that diagnosis to a specific stressor or otherwise provide an explanation as to how the Veteran met the criteria for PTSD. As such, the Board finds the diagnosis has limited probative value. Nieves-Rodriguez, 22 Vet. App. at 304. In contrast, the Board finds the March 2011 VA examiner's determination that the Veteran did not have PTSD is highly probative as the examiner provided a detailed explanation for why the criteria for PTSD were not met. The Board finds the probative value of the March 2011 VA examiner's finding that the criterion for PTSD had not been met outweighs the probative value of the psychologist's finding of PTSD. Service connection is also not warranted for a psychiatric disability other than PTSD. The probative evidence indicates that the Veteran has a depressive disorder, either dysthymia or major depressive disorder. However, the probative evidence does not indicate that the depressive disorder began during, was aggravated by, or is causally related to military service. Initially, the Board finds the psychiatric disability did not begin during service. The service medical records reflect no diagnosis of a psychiatric disorder, the first diagnosis of a psychiatric disorder dates approximately 17 years after separation from military service. The Veteran reported that he began exhibiting symptoms associated with his current psychiatric disorder and alcohol abuse during military service. Although the Veteran's statements are competent evidence to report this history, the Board finds the history of chronic symptoms during service is not credible in light of contradictory histories that the chronic symptoms and alcohol dependency first manifest after military service; notably, the history provided of depression since 1989 at the time of the initial claim in 2001, the histories provided of depression and alcohol abuse since approximately 1998 when establishing treatment by VA, and the post-service report provided that he did not realize how much the in-service explosion affected him. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, although the Veteran's history is competent evidence of symptoms in military service and after military service, because the inconsistencies of his statements they are not credible, and therefore are not probative evidence of the existence of a chronic psychiatric disorder during military service. In sum, the Board finds a psychiatric disability did not begin during service. Although, the record includes histories and findings indicative of a preexisting psychiatric disability, the Veteran is presumed sound on service entrance, as no psychiatric disorder was found on the Veteran's service entrance examination. 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). There is no clear and unmistakable evidence that the Veteran had a psychiatric disorder that pre-existed his military service that underwent an increase in severity during service. The service records contain no notation indicative of an increase in psychiatric symptomatology and VA examiners have provided probative opinions that the preexisting psychiatric disability was not aggravated by service and is not attributable to service. Nieves-Rodriguez, 22 Vet. App. at 304. Although his statements are competent evidence that his symptoms increased during service, they are not competent evidence that the underlying disorder underwent an increase. Furthermore, the probative evidence does not suggest a link between a psychiatric disability and military service. Significantly, the medical evidence of record demonstrates that the current psychiatric disorder is not attributable to military service. The Board finds the medical opinion is highly probative because it is supported by a review of the evidence, a mental evaluation, consideration of the Veteran's statements, and a detailed rationale. Nieves-Rodriguez, 22 Vet. App. at 304. Based on the absence of a diagnosis of a chronic disorder until many years after military service, the conflicting histories as to the date of onset of symptoms associated with the currently diagnosed psychiatric disorder, and the VA examiner's highly probative determinations that the Veteran does not have PTSD or a psychiatric disorder attributable to military service, the Board finds the preponderance of the probative evidence is against the Veteran's claim of entitlement to service connection for a psychiatric disorder. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted. ORDER Service connection for a psychiatric disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs