Citation Nr: 1321765 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 13-12 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from April 1944 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Manchester, New Hampshire which, in part, denied service connection for adjustment disorder with mixed anxiety and depressed mood. The Board notes that this issue has previously been characterized as entitlement to service connection for adjustment disorder with mixed anxiety and depressed mood. During the pendency of this appeal, the Veteran characterized his claim as one for service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, this issue on appeal has been characterized to consider all reported and diagnosed psychiatric disabilities in accordance with Clemons. 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). The issue entitlement to nonservice-connected pension benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. An acquired psychiatric disorder to include adjustment disorder with mixed anxiety and depressed mood, was not shown in service or within the first post-service year, and has not been shown by competent evidence to be related to a disease or injury of service origin. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a July 2012 letter prior to the date of the issuance of the appealed January 2013 rating decision. The July 2012 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded a VA examination in December 2012. The Board finds that this examination is thorough and adequate on which to base a decision in this appeal. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations 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). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2011); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in- service stressor actually occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be resolved on a case-by- case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99 (Oct. 18, 1999). The evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was recently relaxed, adding to the types of claims VA will accept through credible lay testimony alone. The new regulations provide that if a stressor claimed by a veteran is related to the veteran's 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. The DSM-IV diagnostic criteria for PTSD include exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and a response that involved intense fear, helplessness, or horror. Additional diagnostic criteria must be met before a diagnosis of PTSD is warranted. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between 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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran claims that he has an acquired psychiatric disability to include PTSD as a result of his service. It is noted that the Veteran received the Purple Heart amongst other awards for his combat service in World War II. The Veteran's service treatment records are negative for complaints or treatments regarding an acquired psychiatric disability. On a general VA examination in October 1998, there were no references or findings related to a psychiatric disability or psychiatric symptoms. June 2005, March 2006 and February 2007 PTSD screening tests were negative. A July 2008 VA treatment note indicated that the Veteran had anxiety disorder not otherwise specified (NOS) amongst his active problems. A May 2009 VA treatment record again noted a diagnosis of anxiety disorder NOS. A November 2011 PTSD screening test was negative. A June 2012 VA treatment note indicated that the Veteran had anxiety and insomnia as a result of his granddaughter's substance abuse and lifestyle. In June 2012 the Veteran underwent a mental health evaluation. The physician noted that the Veteran reported anxiety over the recent deaths of his wife and daughter as well as the substance abuse problems of his granddaughter. The diagnosis was anxiety disorder and cognitive disorder NOS. A July 2012 VA treatment note reported that the Veteran began getting flashbacks of being shot in the service less than one year ago. He had no nightmares regarding his military service. It was noted that the Veteran had a full psychiatric evaluation done in June 2012 and was diagnosed with anxiety disorder NOS. He had also been seen for medication management and was not diagnosed with PTSD by either provider. The treating physician noted that after asking the Veteran very specific questions, he did not meet the full criteria for PTSD. The Veteran suffered a gunshot wound in World War II and had been having distressing recollections of this event for only the past year but he had no other forms of reexperiencing the event. This also coincided with multiple losses of family members and dealing with 2 substance abusing granddaughters. He displayed no avoidance of stimuli associated with his trauma, no numbing of responsiveness, no avoidance, no feeling detached, no restricted range of affect and no sense of foreshortened future. The physician believed that his anxiety was primarily due to severe psychosocial stressor and he did not meet the full criteria for PTSD. The Veteran underwent a VA examination in December 2012. The examiner reported that the Veteran had an Axis I diagnosis of adjustment disorder with mixed anxiety and depressed mood. He did not have more than one mental disorder diagnosed. It was noted that his wife had died 2 years ago and one of his 2 daughters died a year ago of pulmonary fibrosis. He also had 2 sisters die this past summer. He had one granddaughter who was an alcoholic and the other was a heroin addict. He last worked 5 years ago where he had been a part time organist and choir director for a church for 5 years. He basically had been a choir director and organist at various churches in Rhode Island and New Hampshire. He also taught music at Barrington College from 1953 to 1962 and at Bible College in Ontario, Canada for 17 years. He then returned and taught at Barrington from 1977 to 1980. The examiner noted that while the Veteran was in the Army, he was shot in Belgium and spent about 6 months in the hospital in England. The examiner also noted that the claims file demonstrates that the Veteran began seeing a mental health prescriber in May 2004 for medication. He had consistently seen a mental health prescriber about once every 6 months. In a recent October 2012 appointment, he noted that his stressors were his grandchildren. On his current examination, he reported that all of his current mental health symptoms were primarily related to all of his losses. He was thinking more and more about his wartime experiences now that he had more time. The examiner opined that it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that prior to the recent losses and difficulties with his daughter and granddaughters, the Veteran was functioning quite well in his profession as a Director of Music and organist at various churches and as a teacher at colleges. As noted above, service connection for PTSD requires a medical diagnosis of PTSD 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. 38 C.F.R. § 3.304(f) (2012). Here, the Board accepts that the Veteran was exposed to combat while on active duty. Thus, the Board will turn to the issues of whether the Veteran has a current psychiatric disorder and, if so, whether such disorder is related to his military service, to include combat exposure therein. In this case, the persuasive medical evidence demonstrates that the Veteran has not had a diagnosis of PTSD at any time during the appeal. As noted in the Introduction, VA treatment notes throughout the appeal have diagnosed the Veteran with acquired psychiatric disorders such as anxiety disorder. However, none of the medical evidence of record contains a diagnosis of PTSD and the record contains multiple negative PTSD screens. Additionally, a July 2012 VA treatment report specifically noted that the Veteran did not meet the full criteria for PTSD. The Board has reviewed all of the Veteran's VA treatment records, and it has found no indication that the Veteran has ever been diagnosed with PTSD. While statements from the Veteran reflect his continued assertion that he has PTSD, none of the medical evidence supports his opinion, and neither the Veteran nor his representative has presented, identified, or alluded to the existence of, any such opinion. While the Veteran is competent to report symptoms, he is not necessarily competent to attribute such symptoms to a specific underlying psychiatric disorder. In this regard, the Board ultimately places more weight on the medical opinions and clinical findings of record on the matter of whether the Veteran has a current diagnosis of PTSD. Regarding an acquired psychiatric disorder other than PTSD, the Board again notes that if psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of psychosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an acquired psychiatric disorder had its onset in service. With regard to establishing service connection for an acquired psychiatric disorder on a presumptive basis under 38 U.S.C.A. §1112, the Board notes that there is no medical evidence of record indicating that the Veteran had any psychosis within one year of discharge from either periods of his active duty. Notably, the December 2012 VA examiner noted that the Veteran's file demonstrated that the Veteran was initially seen by a mental health prescriber in May 2004. Thus, onset of a psychosis is not demonstrated at any time within the Veteran's first year following his separation from service; therefore service-connection for an acquired psychiatric disability may not be presumed under the provisions of 38 C.F.R. § 3.307 and § 3.309(a). With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). There is a current diagnosis of adjustment disorder with mixed anxiety and depressed mood, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, the Veteran's service treatment records are negative for treatment or complaints related to an acquired psychiatric disability and there are no clinical findings or diagnoses of any psychiatric disability during service. To the extent that the Veteran is asserting that he experienced acquired psychiatric disability in service and continuing symptoms thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the Board notes again that the Veteran's service treatment records are negative for complaints or treatments related to psychiatric symptoms while the record also demonstrates that the Veteran did not present with psychiatric complaints until 2004. Additionally, in multiple treatment records, the Veteran reported that his anxiety was due to the recent deaths of his family members and the substance abuse struggles of his granddaughters. He also repeatedly noted in treatment records that his thoughts regarding his time in the military only began recently occurring. Furthermore, as noted, the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an adjustment disorder is not a psychoses, and as no competent evidence of a current psychotic disorder is shown, the Board finds that the theory of continuity of symptomatology is not applicable in this case. Here, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current acquired psychiatric disability and the Veteran's military service. In fact, the only medical opinion addressing the etiology of the acquired psychiatric disability weighs against the claim. As indicated above, the December 2012 VA examiner opined that it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event or illness. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. To the extent that the Veteran contends that a medical relationship exists between his current claimed acquired psychiatric disability and service, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current acquired psychiatric disability and service. As such, the Board ascribes far more weight to the conclusions of the VA examiner who concluded that the Veteran's current acquired psychiatric disability was not incurred in service. See Jandreau, 492 F.3d at 1377. In sum, the Board finds that service connection for an acquired psychiatric disorder to include PTSD must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied. ________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs