Citation Nr: 1320650 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-25 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active air service from April 1973 to May 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2009, August 2011, and October 2012, the Board remanded this case for additional development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The Veteran and his brother testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2009 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims files. FINDINGS OF FACT 1. PTSD due to a verified in-service stressor has been present during the pendency of this claim. 2. A psychosis was not present in service or manifested within one year after the Veteran's discharge from service. 3. Alcohol dependence/abuse was not caused or worsened by service-connected disability. 4. No other acquired psychiatric disorder present during the pendency of the claim is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.3.04 (2012). 2. The criteria for service connection for psychiatric disability other than PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.3.04, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), 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). The record reflects that the originating agency provided the appellant with all required notice by letters mailed in May 2004 and November 2007. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that service treatment records and relevant post-service treatment records have been obtained. Records associated with an application for disability benefits were also obtained. Neither the Veteran nor his representative has identified any additional, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In addition, the Veteran was afforded VA examinations in response to the claims. The Board finds the October 2006, December 2009, and August 2011 VA examination reports in combination are adequate for adjudication purposes: the examiners reviewed the claims files and provided probative diagnoses. VA also obtained probative opinions as to whether any disability diagnosed during the claim period was related to service: the opinions are supported by thorough explanation. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Personality disorders are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f). Corroboration of every detail of a claimed stressor, including an appellant's personal involvement, is not required; rather, a Veteran needs only to submit independent evidence of a stressful even that is sufficient to imply his or her personal exposure. Pentecost v. Principi, 16 Vet. App. 124 (2002), citing Suozzi v. Brown, 10 Vet. App. 307 (1997). Where a Veteran served for at least 90 days during a period of war and manifests a psychosis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); 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. Factual Background A November 1973 service treatment record reveals that the Veteran was "unhappy in work" and "sullen and depressed" because he was unable to work in aircraft maintenance. The record further reveals that the Veteran had visceral manifestations, i.e. generalized fatigue, stomach upset, and intermittent diarrhea, as a result of depression. Subsequent records indicate that the Veteran was awarded an administrative discharge because of his unhappiness in the Air Force as a result of an inability to work in aircraft maintenance. The report of the May 1974 separation examination indicates that the Veteran reported depression and excessive worry related to his job. Clinical evaluation of the psychiatric system was negative. In May 1991, the Veteran was admitted to a substance abuse treatment program. The Veteran reported drinking alcohol since age 18. He explained that he had consumed alcohol several times a week until eight months earlier, when his intake increased. He denied feeling depressed after drinking. He was assessed with alcohol dependence. In February 1992, the Veteran was admitted for VA substance abuse treatment. The inpatient records reflect the Veteran's history of alcohol use since approximately age 18/19. The Veteran explained that he initially used alcohol for socialization, but his usage increased steadily as his tolerance increased until he drank "all [he] could get" on a daily basis. The discharge diagnoses included alcohol dependence and personality disorder not otherwise specified. A July 1993 VA examination record reflects the Veteran's history of memory loss and alcohol abuse. After examination, the Veteran was diagnosed with alcohol abuse and memory loss by history without obvious findings on exam. In September 1993, the Veteran was admitted for substance abuse treatment. He reported alcohol use since age 18 and "drinking on a regular basis" since age 20. He was assessed with alcohol abuse. The record of a June 1994 psychological evaluation, done in conjunction with an application for disability benefits, notes that the Veteran appeared, "mildly to moderately depressed which appeared to be a situational reaction to the loss of relationship with his spouse." The record of a February 2000 psychiatric evaluation reflects the Veteran's history of problems with alcohol and depression. The Veteran reported "considerable difficulty with depressed mood" for the "last several years" and difficulty with excessive alcohol use since his late 30s, after he underwent rotator cuff surgery which rendered him unable to continue working. The Veteran received diagnoses of major depressive disorder and alcohol dependence. Subsequent records reflect continued treatment for depressive symptoms and assessments of major depressive disorder, recurrent. The records indicate that the Veteran stopped drinking alcohol in June 2000. A November 2002 VA treatment record reflects the Veteran's history of anxiety, depression, and alcohol abuse in remission. The Veteran explained that he, "had been feeling increasingly anxious over past several months." He also reported other symptoms, including insomnia, nightmares, and intrusive thoughts about dead bodies during the Vietnam War. The Veteran attributed the symptoms to stopping drinking alcohol two years earlier and a friend dying the previous winter. The record indicates that the Veteran was an alcoholic "since Vietnam" and that he was without symptoms of PTSD or depression during that time. A February 2004 VA "PTSD consult" record indicates that the Veteran reported a stressor of unloading the human remain cases of soldiers from Vietnam during service. The record indicates that the "CAPS clinical interview" and testing supported a diagnosis of service-related PTSD. The record notes that the Veteran endorsed significant symptoms of current major depression. The Veteran was assessed with service-related PTSD and alcohol dependence in sustained full remission. An April 2004 VA treatment record notes the Veteran's history of worsening anxiety and insomnia which he believed was due to PTSD. The record reveals a diagnosis of PTSD with anxiety and recent onset of insomnia. A September 2005 VA treatment record notes that the Veteran reported that he stopped drinking alcohol five years earlier. The record notes that the Veteran had a history of PTSD and alcohol dependence. The examining social worker diagnosed PTSD, depressive disorder, and alcohol dependence in partial remission. Subsequent VA treatment records reveal diagnoses of PTSD by an examining social worker. The records only reflect provisional or "rule out" diagnoses of PTSD by physicians, however. See November 2005 and February and May 2006 VA treatment records. An October 2006 VA examination record reflects the Veteran's history of unloading human remain cases from airplanes arriving from Vietnam during service and seeing one such case opened, revealing a body bag. He also reported alcohol abuse since graduation from high school/entry into the military. He explained that he started drinking because of peer pressure. He denied use of alcohol for the previous six years. The Veteran was diagnosed with major depressive disorder and recurrent alcohol dependence in remission. The examiner explained that the alcohol and drug abuse was "least as likely as not related to the service-connected depression." The examiner indicated that the Veteran appeared to have manifestations of underlying depression and alcohol abuse in service, which were contributors to his decision to leave military service. The examiner opined that the depression and alcohol dependence were the result of military stress, though the examiner had difficulty resolving the issue without speculation because the Veteran had a continuing course of depression and alcohol dependence after separation from military service. The examiner provided an addendum opinion, reflecting a determination that it was less likely than not that the Veteran's currently diagnosed depressive disorder was caused by or a result of trauma. The examiner explained that, during military service, the examiner did not like his job, was using alcohol heavily, and was away from home. Subsequent VA treatment records reflect diagnoses including PTSD, major depressive disorder, panic disorder without agoraphobia, and alcohol dependence. The records indicate that the Veteran resumed use of alcohol in September 2008. A December 2009 VA examination record reflects diagnoses of alcohol abuse, depression, and anxiety. The examiner stated that the Veteran manifested clear depressive symptoms and milder anxiety symptoms. The examiner found it impossible to ascertain the etiology of the depressive and anxiety symptoms and their relation to military service without resorting to mere speculation because of the Veteran's alcohol dependence. The examiner explained that depressive and anxiety symptoms are often related to chronic alcohol use. The examiner indicated that if the Veteran were able to sustain abstinence for a long period of time, the Veteran could be reevaluated and the etiology of the symptoms could be reconsidered. A March 2010 VA treatment record reflects findings of depression, anxiety, and alcohol dependence. The psychiatrist found it "unclear" whether the Veteran had PTSD due to lack of clear hypervigilant symptoms and no clear significant impairment in daily functioning. The psychiatrist also found it unclear whether the Veteran had major depressive disorder because the restlessness and insomnia were related to pain issues. The Veteran was admitted for substance abuse treatment in June 2010. The associated records reveal discharge diagnoses of alcohol dependence and mood disorder. Subsequent records reveal the Veteran's history of abstinence from alcohol. An August 2011 VA examination record reflects diagnoses of alcohol dependence, early full remission, and personality disorder not otherwise specified. The examiner found that although the Veteran was exposed to a traumatic event, the Veteran did not meet the full criteria for PTSD. The examiner explained that the Veteran did not persistently re-experience the traumatic event or endorse avoidance symptoms, and objective testing was not consistent with a PTSD diagnosis. The examiner added that although there were some depressive symptoms noted, the symptoms did not meet the criteria for a DSM-IV mood disorder at that time based on objective psychological testing. The examiner noted that the Veteran had a long history of alcohol dependence which was in remission. The examiner explained that although the Veteran began drinking in the military, he did it because he did not have anything else to do; it was not as a coping method for the reported stressor. The examiner found it was less likely than not that the alcohol dependence was the result of military service. The August 2011 VA examiner provided an addendum opinion in February 2013. The examiner noted that the record dated during the claims period revealed diagnoses of alcohol abuse/dependence, depression, anxiety, insomnia, mood disorder, and personality disorder. The examiner found the Veteran met the criteria for a diagnosis of alcohol abuse/dependence since 2004. The examiner noted that the Veteran began drinking during service because of boredom. The examiner reported that the Veteran did not report drinking was a coping mechanism for his military stressor. Therefore, the examiner found it less likely as not that the alcohol abuse/dependence was the result of the stressor, though it did begin in service. With respect to the Veteran's depressive symptoms, although the Veteran had diagnoses of depression since 2004, the examiner found that none of the records revealed a continuation of the "underlying depression" symptoms reported in service due to not being able to do his desired military occupational specialty (MOS). The examiner found it less likely than not that any depressive symptoms were the result of service because the depression in service was related to not getting the MOS he wanted and the post-service records did not report any histories of depression related to this. The examiner found the in-service "underlying depression" resolved after the Veteran was discharged. With respect to the diagnoses of PTSD, the examiner found it at least as likely as not that the Veteran met the criteria for PTSD in 2004 and 2005. The examiner noted that the PTSD appeared to reduce in 2006 and that the Veteran did not meet the criteria for PTSD or a sub-PTSD diagnosis, like an anxiety disorder not otherwise specified, based on objective psychological testing during the 2011 VA examination. Analysis Service connection is warranted for PTSD based on the probative evidence of PTSD as a result of active service. The Veteran contends that he has PTSD as a result of handling cases containing casualties shipped to the United States from the Vietnam War. The Veteran's service personnel records show that he was an air cargo specialist while serving at Travis Air Force Base, and information from the Travis Air Museum states that Travis Air Force Base was the principal receiving station for military fatalities that were flown to the United States for burial during the Vietnam War. The Board finds the Veteran's account of handling the cases is credible and consistent with his service as an air cargo specialist, and the Board finds the evidence is sufficient to corroborate the reported stressor. Furthermore, the Board finds the evidence establishes the presence of PTSD due to the verified stressor during the period of this claim. The record reveals probative diagnoses of PTSD in 2004 and 2005 based on the reported stressor. The Board acknowledges that subsequent examination indicates that the Veteran no longer exhibits symptoms warranting a diagnosis of PTSD. The requirement that a claimant have a current disability 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 if no disability is present at the time of the claim's adjudication, however. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Thus, service connection is warranted for PTSD. Service connection is not warranted for alcohol abuse/dependence. Although the evidence indicates that the alcohol dependence began during service, service connection may not be granted for alcohol abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. § 3.301(a) (2012). An alcohol abuse disability may only be service connected if the alcohol abuse disability was acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The evidence does not suggest that the alcohol abuse disability was acquired as a symptom of, or secondary to, the service-connected PTSD. Rather, the evidence, to include the Veteran's own histories, specifically indicates that it was not acquired as a result of the PTSD. Service connection is also not warranted for any other psychiatric disorder, to include major depressive disorder. The Board acknowledges that the Veteran exhibited depressive symptoms during service and that he was diagnosed with mood disorders during the claims period. However, there is no evidence showing that he manifested a psychosis within one year after his discharge from service. In addition, the preponderance of the evidence shows that a current mood disability was not present in service and is not related to service. Initially, the Board finds the competent evidence does not suggest that a current mood disability was present in service. Although the record reveals findings of depressive symptoms in service, these symptoms were linked to job dissatisfaction, and the record indicates that the symptoms ceased after separation from service. The post-service medical records do not report any histories or findings indicative of depressive symptoms until 1994, twenty years after discharge from service, the record does not include histories of continuity of depressive symptoms after discharge, and a VA examiner has provided a probative opinion that the in-service depressive symptoms did not continue after discharge from service. The probative evidence also does not suggest that a current mood disability is related to service. The August 2011 VA examiner has provided a probative opinion that the mood disability is not related to service. The Board acknowledges that the October 2006 VA examiner determined that the Veteran had manifestations of depression during service as a result of military stress and a "continuing course" of depression after separation and that the examiner noted that the depression was "service-connected." To the extent the examination record can be interpreted as a determination that the then diagnosed major depressive disorder was related to service, the Board finds the determination lacks probative value. The determination is not supported by a clear rationale - the examiner never explains how it was determined that the in-service depressive symptoms were due to stress rather than job dissatisfaction or that the Veteran had a "continuing course" of depression after service -- and the examiner provided a somewhat contradictory addendum opinion and rationale. Although the appellant might believe that his mood disability is related to service, his assertion of a relationship is not competent evidence of a nexus: the record does not include a history of continuity of symptomatology, and the record does not otherwise suggest the appellant, who is a layperson, is competent to determine the cause of the mood disability. Accordingly, although service connection is warranted for PTSD, service connection is not warranted for any other psychiatric disorder. In determining that service connection is not warranted for any other psychiatric disorder, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable o this component of the Veteran's claim because the preponderance of the evidence is against this component of the claim. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for psychiatric disability other than PTSD is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs