Citation Nr: 1321087 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 12-30 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1948 to August 1949, and from October 1950 to November 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for PTSD. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include PTSD, as a result of his service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred as a result of the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 11154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran argues that service connection is warranted for PTSD. He argues that he has PTSD as a result of participation in combat in Korea. He has submitted statements, a lay statement, and a newspaper article, in support of his claim, which indicate that he was wounded during participation in combat in Korea, and that he saved the life of a fellow soldier. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The U.S. Court of Appeals for Veterans Claims (Court) has held, in essence, that with regard to claims for acquired psychiatric disorders, appellants do not file a claim to receive benefits only for a particular diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran has specifically claimed service connection for PTSD, however, he has been diagnosed with an acquired psychiatric disorder other than PTSD (i.e., anxiety). The Board has therefore characterized the issue broadly, as stated on the cover page of this decision. The Board initially notes that the law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256 -6258 (2000). In this case, service records indicate that the Veteran served in Korea, and that he was awarded the Combat Infantryman Badge. Under the circumstances, the Board finds that participation in combat is established and the Veteran is entitled to the presumptions at 38 U.S.C.A. § 1154(b). Although the Veteran is deemed to have participated in combat, the Court has held that 38 U.S.C.A. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). The Veteran's service treatment records are not available, and have been destroyed in the 1973 fire at the National Personnel Records Center. As for the post-service medical evidence, it consists of VA reports, dated between 2006 and 2012. This evidence includes VA progress notes which show that in July 2007, a PTSD screen was negative. VA progress notes, dated in July 2007, and in January and September of 2008, show that he was noted to have good judgment and insight, and to be oriented times three, and to be alert. There was no relevant diagnosis. Beginning in February 2011, he complained of symptoms that included depression. He stated that he was taking care of his wife, who had dementia. He was noted to be taking medication for control of his psychiatric symptoms. On examination, there was no homicidal or suicidal ideation, illusions, hallucinations. Insight was good and judgment was grossly intact. Thoughts were goal-directed. Speech was unremarkable, affect was euthymic, stable and appropriate. The assessments note PTSD, and caretaker stress. Thereafter, he was afforded several diagnoses of PTSD. A VA examination report, dated in May 2011, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran stated the following: he had good relationships with his siblings. He did not receive any mental health treatment during service. He had been treated in the field for a gunshot wound to the foot while in Korea. While in Korea, he had been part of a 53-man patrol that was ambushed in March 1951, and only 13 men survived. He carried a wounded man out of the battle. He was married in 1949, divorced after about 30 years, and he remarried in 1981. He had a great relationship with his current wife, and with his two stepchildren. He has a good group of friends who he sees frequently. He currently spends most of his time taking care of his wife who is disabled. Following service, he owned a service station, and he later worked at a company for 15 years. He retired in 1986. He did not have any problems with any of his jobs. He had never been hospitalized for psychiatric treatment, or received any outpatient mental health treatment (the examiner noted, however, that VA reports indicated recent mental health treatment, with complaints of nightmares). He did not have a history of homicidal or suicidal ideation, plan, or intent. The examiner noted that the Veteran did not report problems related to anger, aggression, or impulsivity. The Veteran described his current mood as "good." He stated that his sleep was "off and on," with about five to six hours of sleep per night. He reported ongoing nightmares about once a week, and that he mostly dreamed of Army experiences. He was able to go back to sleep and he did not report functional impairment as a result. He had no problems related to concentration or memory, and he generally felt rested with good energy. He did not report other symptoms of re-experiencing, other than occasional memories that were triggered by watching the news. He did not describe ongoing symptoms of avoidance or numbing, or increased arousal. He reported having anxiety and worry about his wife's medical condition; the examiner indicated that these symptoms did not impair him functionally. On examination, speech was unremarkable. Thought processes were logical and goal-directed. There was no evidence of hallucinations or delusions. Mood was euthymic and affect was mood-congruent. The Veteran denied currently having homicidal or suicidal ideation, plan, or intent. He was oriented to person, place, date and situation. He completed serial 7s without difficulty. Judgment and insight were good. No memory impairment was noted. The Axis I diagnosis was anxiety disorder NOS (not otherwise specified), with symptoms in partial remission. The examiner stated that the Veteran had mild and transient symptoms of anxiety related to worry about his wife's medical condition, and that although he had nightmares about once a week, they did not appear to cause specific functional impairment. The Veteran did not describe other symptoms suggestive of a diagnosis of PTSD, specifically, he did not report other symptoms related to avoidance and numbing or increased arousal. In a letter, dated in April 2008, a former soldier who served with the Veteran (J.P.) recounted an incident in which he and the Veteran fought against Chinese forces in Korea, were both wounded, and in which the Veteran carried J.P. out of the battle. The Board has determined that the evidence shows that the Veteran does not have PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that under 38 U.S.C.A. § 1110, a veteran must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In this case, the May 2011 VA examination report is considered highly probative evidence that the Veteran does not have PTSD, as this report is shown to have been based on a review of the Veteran's claims file, and it is accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In that report, the examiner concluded that the Veteran does not have PTSD. Accordingly, the claim must be denied. In reaching this decision, the Board has considered several diagnoses of PTSD found in VA progress notes, dated beginning in February 2011. However, none of these diagnoses are shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history. In addition, none of these diagnoses includes a discussion of the criteria for PTSD, or notes that these criteria were otherwise present. Furthermore, the Board affords more weight to the May 2011 VA examiner's opinion, as the opinion is shown to have been based on a review of the claims file, and as the examiner's opinion is accompanied by a full explanation. Id. Accordingly, this evidence is insufficiently probative to warrant a grant of the claim. With regard to an acquired psychiatric disorder other than PTSD, the Board finds that the claim must be denied. The Veteran was not shown to have been treated for, or diagnosed with, an acquired psychiatric disorder during service, thus, a chronic disease is not shown. See 38 C.F.R. § 3.309(b). Rather, the earliest post-service medical evidence of any relevant findings is dated in 2011. This is about 60 years after separation from active duty service. The Veteran is not shown to have been diagnosed with a chronic disease listed at 38 C.F.R. § 3.309(a), therefore, service connection based on the theory of a continuity of symptomatology (38 C.F.R. § 3.309(b)) is not warranted. Walker. There is no competent opinion in support of the claim. In this regard, the only competent opinion of record is the May 2011 VA examiner's opinion, in which the examiner concluded that the Veteran's anxiety was related to his wife's medical condition. This opinion is considered to be highly probative, as it is shown to have been based on a review of the claims file, and as the examiner's opinion is accompanied by a full explanation. Prejean; Neives-Rodriguez. The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issue on appeal is based on the contention that an acquired psychiatric disorder, to include PTSD, has been caused by service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran has an acquired psychiatric disorder, to include PTSD, that is related to service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the medical records have been discussed. A VA psychologist has determined that the Veteran does not have PTSD, and provided an opinion against the claim for an acquired psychiatric disorder other than PTSD. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions to the effect that an acquired psychiatric disorder, to include PTSD, was caused by service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002& Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in April 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. As an initial matter, service treatment reports are not of record. A report from the National Personnel Records Center (NPRC), dated in November 2007, indicates that there are no additional service treatment records available, and that any other records that may have existed may have been destroyed in a 1973 fire. Under such circumstances, there is a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment records. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). The Board is also under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). However, the Court has rejected the argument that there should be an "adverse presumption" against VA where service medical records have been lost or destroyed while in the Government's control, including records destroyed in the 1973 fire at the NPRC. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. Prior to issuing its decision, the RO made requests to the NPRC to obtain any available service treatment records, to include a specific request for Morning Reports, and sick reports. However, the NPRC reported that no additional records could be found. In September 2008, the RO issued a memorandum in which it determined that the Veteran's personnel records are unavailable for review. In a March 2007 duty-to-assist letter, in association with other claims, the Veteran was advised of additional sources of evidence he could identify or submit. See also duty-to-assist letters, dated in September 2008 and April 2011. The Veteran has been afforded the opportunity for a hearing, and he declined. Therefore, the Board finds that the RO has satisfied its duty to assist under Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). It appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded an examination, and an etiological opinion has been obtained. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinions stated, relying on and citing to the records reviewed. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs