Citation Nr: 1319355	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  10-26 821	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1. Entitlement to service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for an acquired psychiatric disability other than PTSD.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

J. Hager, Counsel
INTRODUCTION

The Veteran served on active duty from April 1969 to April 1971.

This case comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  In that decision, the RO denied entitlement to service connection for PTSD.  For the reasons stated below, the Board has recharacterized and bifurcated the claim, to reflect separate consideration of entitlement to service connection for PTSD and for other psychiatric disorders with which the Veteran has been diagnosed.  Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012) (VA is free to dismember a claim and adjudicate it in separate pieces).  See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion).

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 

The issue of entitlement to service connection for an acquired psychiatric disability other than PTSD 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

The Veteran has not been diagnosed with PTSD.


CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a May 2009 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for PTSD.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the May 2009 letter complied with this requirement.

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the May 2009 letter.

The RO also sent a July 2009 letter that erroneously stated the Veteran's claim had previously been denied and that in order to have the RO reconsider the claim he had to submit new and material evidence.  While new and material evidence received within a year of the June 2009 denial would warrant readjudication of the claim under 38 C.F.R. § 3.156(b), the Veteran was under no obligation to submit such evidence, as he still had one year to appeal the RO's decision, which he did by filing a notice of disagreement in July 2009.  The Board finds that this error was harmless because at most it erroneously indicated that the Veteran should submit additional evidence.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records.  The Veteran was also afforded a June 2009 VA PTSD examination.  For the reasons stated below, this examination was adequate.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for entitlement to service connection for PTSD is thus ready to be considered on the merits.

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).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  

There are, however, particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Those requirements are: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f).  38 C.F.R. § 4.125 provides that if a diagnosis of a mental disorder does not conform to DSM-IV or is not supported by findings in an examination report, the report should be returned to the examiner to substantiate the diagnosis.  In this case, however, as shown below, there is no medical evidence diagnosing PTSD.

The Veteran contends that he has PTSD and has been treated for this disorder at the Louisville, VA Medical Center (VAMC).  The Veteran is competent to report a contemporaneous medical diagnosis, but his testimony must be weighed against the other evidence of record.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  That evidence, discussed below and including treatment records from the Louisville VAMC, reflects that the Veteran has not been diagnosed with PTSD.  In addition, veterans are competent to testify as to some matters of diagnosis and etiology, in particular those of a simple or observable nature.  Jandreau, 492 F.3d at 1377, n. 4 ("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").  With regard to PTSD, however, a complex disorder involving psychiatric symptoms, the applicable regulation requires medical evidence diagnosing PTSD and the Court has stated, "It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant."  Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).  The Veteran's testimony is therefore not competent in this regard.  For the following reasons, the competent evidence in this case reflects that the Veteran does not have PTSD.

A February 2008 PTSD screen was negative.  An October 2008 post-traumatic clinical team intake program note indicated that on clinician administered PTSD scale (CAPS) testing that findings were negative for PTSD and the only diagnosis was depression, not otherwise specified (NOS).  A November 2008 VA treatment note indicated that the Veteran had completed Minnesota Multiphasic Personality (MMPT-2) testing and that, even considering some possible underrepresentation of pathology, elevations would still only suggest minor psychopathology in the areas suggesting introversion, social discomfort, and social isolation.  December 2008 mental health outpatient notes contained diagnoses, after mental status examinations, of depression, NOS and adjustment disorder.  A June 2009 VA treatment note indicated that the Veteran had some unresolved issue with Vietnam but did not meet the criteria for PTSD.  A July 2009 mental health outpatient note contained a diagnosis of rule out PTSD.  An October 2009 VA treatment note contained a diagnosis of sleep arousal disorder.  A March 2010 VA problem list did not contain a diagnosis of PTSD.  Most significantly, in June 2009, a VA psychologist conducted a comprehensive PTSD examination addressing all of the relevant criteria, and, after reviewing the claims file and examining the Veteran, diagnosed only sleepwalking disorder.

The above medical evidence reflects that the Veteran has undergone multiple psychiatric evaluations since filing his claim and has consistently been found by health care professionals not to have PTSD.  This evidence, which includes evidence from the Louisville VAMC, indicates that the Veteran's report of being treated for PTSD was erroneous and reflects that he has not met the current disability requirement with respect to his claim for entitlement to service connection for PTSD.
The Board notes that the Veteran received the combat infantry badge for his service in Vietnam, reflecting that he engaged in combat with the enemy, and his claimed stressors are based on this combat experience.  The Board therefore presumes that the Veteran's testimony is credible and would constitute a valid stressor for purposes of the PTSD.  See 38 U.S.C.A. § 1154(b) (where a veteran has engaged in combat with the enemy, his testimony is sufficient to establish service incurrence if consistent with the circumstances of service, even in the absence of service records showing such incurrence).  38 U.S.C.A. § 1154(b) does not, however, create a statutory presumption that a combat veteran's alleged disease or injury is service connected; rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).  For the above reasons, the Veteran's claim for entitlement to service connection for PTSD must be denied because of the lack of evidence of current disability, which is a necessary element for establishing any service connection claim, for PTSD or otherwise.  38 C.F.R. § 3.304(f); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  As shown below, however, this finding does not preclude the Veteran from establishing entitlement to service connection for a psychiatric disorder other than PTSD. 


ORDER

Entitlement to service connection for PTSD is denied.
REMAND

As indicated above, the Veteran has been diagnosed with psychiatric disorders other than PTSD.  He has also met the in-service event requirement with his competent, credible testimony regarding his combat stressors.  As there is evidence of current disability that may be associated with service, a VA examination is warranted to determine the nature and etiology of any psychiatric disorders other than PTSD.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 

Prior to obtaining any medical opinion, to ensure that all due process requirements are met, and that the record is complete, the RO/AMC should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.  This includes any relevant treatment records from the New Albany Community Based Outpatient Clinic (CBOC) and its parent facility dated since April 2011.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  The RO/AMC should also contact the Veteran to request information regarding any mental health treatment since his October 2012 Board hearing.  

Accordingly, the claim for entitlement to service connection for a psychiatric disorder other than PTSD is REMANDED for the following action: 

1.  Send the Veteran a letter requesting that he either provide outstanding treatment records pertaining to evaluation and/or treatment of any mental health disorders since October 2012, or to provide VA with sufficient information to obtain these records.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, the RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must then be given an opportunity to respond.

2.  Obtain all relevant treatment records from the New Albany CBOC and its parent facility for the period since April 2011.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, the RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must then be given an opportunity to respond.

3.  Following receipt of any outstanding treatment records, but whether or not records are received, arrange for the Veteran to undergo VA examination as to the nature and etiology of his psychiatric disorders.  All necessary tests should be conducted.  Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review.  

The examiner should first identify all current psychiatric disorders, including any depression NOS, adjustment disorder, or sleepwalking/sleep arousal disorder.  Then, with respect to each diagnosed disorder, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any such disorder is related to the in-service events described by the Veteran.  

The examiner is hereby notified that the Veteran is in receipt of the combat infantry badge for his service in Vietnam; thus, his testimony regarding combat experience are credible.  A complete rationale should accompany any opinion provided.

4.  After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that the examiner documented his/her consideration of Virtual VA.  If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once.  

5.  The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of his claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

6.  After the above development has been completed, readjudicate the claim for entitlement to service connection for a psychiatric disorder other than PTSD.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
STEPHANIE L. CAUCUTT
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs